REPORT OF THE INTERNATIONAL LAW COMMISSION COVERING THE WORK OF ITS FIFTH SESSION 1 JUNE - 14 AUGUST 1953

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• Document Creation Date: November 17, 2016
• Document Release Date: July 7, 2000
• Sequence Number: 1
• Publication Date: August 14, 1953
• Content Type: REPORT

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REPORT
OF THE
INTERNATIONAL LAW
COMMISSION
Covering the work of its fifth session
1 June-14 August 1953
GENERAL ASSEMBLY
OFFICIAL RECORDS: EIGHTH SESSION
SUPPLEMENT No. 9 (A/2456)
NEW YORK, 1953
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UNITED NATIONS
REPORT OF THE
INTERNATIONAL LAW
COMMISSION
COVERING THE WORK OF ITS FIFTH SESSION
1 JUNE - 14 AUGUST 1953
GENERAL ASSEMBLY
OFFICIAL RECORDS: EIGHTH SESSION
SUPPLEMENT No. 9 (A/2456)
New York, 1953
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Chapter Page
1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. Arbitral procedure . . . . . . . . . . . . . . . . . . . . . . . 2
III. Regime of the high seas . . . . . . . . . . . . . . . . . . . . 12
IV. Nationality including statelessness . . . . . . . . . . . . . . . . 20
V. Other decisions . . . . . . . . . . . . . . . . . . . . . . . . 30
Amex
I. Comments by governments on the draft of arbitral procedure prepared
by the International Law Commission at its fourth session in 1952... 32
IT. Comments by governments on the draft articles on the continental shelf
and related subjects prepared by the International Law Commission
at its third session in 1951 . . . . . . . . . . . . . . . . . . 42
All United Nations documents are designated by symbols, capital letters com-
bined with figures. Mention of such a symbol indicates a reference to a United
Nations document.
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Chapter I
1. The International Law Commission, established in
pursuance of General Assembly resolution 174 (II) of
21 November 1947 and in accordance with the Statute
of the Commission annexed thereto, held its fifth session
at Geneva, Switzerland, from 1 June to 14 August 1953.
The work of the Commission during the session is re-
lated in the present report which is submitted to the
General Assembly.
1. MEMBERSHIP AND ATTENDANCE
2. The Commission consists of the following mem-
bers:
Name
Mr. Ricardo J. Alfaro
Mr. Gilberto Amado
Mr. Roberto Cordova
Mr. J. P. A. Francois
Mr. Shuhsi Hsu
Mr. Manley O. Hudson
Faris Bey el-Khouri
Mr. F. I. Kozhevnikov
Mr. H. Lauterpacht
Mr. Rabhabinod Pal
Mr. A. E. F. Sandstrom
Mr. Georges Scelle
Mr. Jean Spiropoulos
Mr. J. M. Yepes
Mr. Jaroslav Zourek
Nationality
Panama
Brazil
Mexico
Netherlands
China
United States of
America
Syria
Union of Soviet
Socialist Republics
United Kingdom of
Great Britain and
Northern Ireland
India
Sweden
France
Greece
Colombia
Czechoslovakia
3. With the exception of Mr. Manley O. Hudson, who
for reasons of health was unable to attend, all the mem-
bers of the Commission were present at the fifth ses-
sion. Mr. Cordova attended the meetings of the Com-
mission from 22 June, Mr. Spiropoulos from 10 June to
8 August. Mr. Pal ceased to attend meetings after 16
July, and Mr. Hsu after 11 August.
II. OFFICERS
4. At its meeting on 1 June 1953, the Commission
elected the following officers:
Chairman : Mr. J. P. A. Francois ;
First Vice-Chairman : Mr. Gilberto Amado ;
Second Vice-Chairman : Mr. F. I. Kozhevnikov;
Rapporteur: Mr. H. Lauterpacht.
5. Mr. Yuen-li Liang, Director of the Division for the
Development and Codification of International Law,
represented the Secretary-General and acted as Secre-
tary of the Commission.
III. AGENDA
6. The Commission adopted an agenda for the fifth
session consisting of the following items:
(1) Arbitral procedure
(2) Regime of the high seas
(3) Regime of the territorial sea
(4) Law of treaties
(5) Nationality including statelessness
(6) Draft code of offences against the peace and
security of mankind -
(7) Request of the General Assembly concerning the
codification of the topic "diplomatic intercourse and
immunities"
(8) Date and place of the sixth session
(9) Ways and means of providing for the expres-
sion of dissenting opinions in the report of the Com-
mission covering the work of each session
(10) Other business
7. In the course of the session the Commission held
fifty-seven meetings. It considered the items on the
agenda, with the exception of the regime of the terri-
torial sea (item 3) and the law of treaties (item 4). The
documents submitted to the Commission regarding item
3, namely, "Second report on the Regime of the Ter-
ritorial Sea" (A/CN.4/61 and A/CN.4/61/Add.1) by
Mr. Francois, special rapporteur, and "Information and
Observations submitted by Governments regarding the
Question of the Delimitation of the Territorial Sea of
Two Adjacent States" (A/CN.4/71 and A/CN.4/71/
Add. 1), compiled by the Secretariat, as well as the docu-
ment pertaining to item 4 "Report on the Law of
Treaties" (A/CN.4/63) by Mr. Lauterpacht, special
rapporteur, were held over for consideration at the next
session. -
8. The work on the questions dealt with by the Com-
mission is summarized in chapters II to V of the pres-
ent report.
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Chapter II
ARBITRAL PROCEDURE
I. INTRODUCTORY
9. At its first session in 1949, the International Law
Commission selected arbitral procedure as one of the
topics of codification of international law and appointed
Mr. Georges Scelle as special rapporteur. The successive
stages of the preparation and discussion of that topic
are set forth in paragraphs 11-14 of the report of the
Commission on its fourth session.'
10. At its fourth session in 1952, the Commission
adopted a "draft on arbitral procedure" with accom-
panying comment.2 In accordance with article 21, para-
graph 2, of its Statute, the Commission decided to
transmit the draft, through the Secretary-General, to
the governments with the request that they should sub-
mit their comments. The Commission also decided to
draw up, during its fifth session in 1953, a final draft
for submission to the General Assembly in accordance
with article 22 of its Statute.
11. Up to the time of the meeting of the Commission
on 1 June 1953, comments were received from the Gov-
ernments of the following countries: Argentina, Bel-
gium, Brazil, Chile, India, the Netherlands, Norway,
Sweden, the United Kingdom of Great Britain and
Northern Ireland and the United States of America.'
An acknowledgment of the great value of these com-
ments, as well as some observations relevant thereto, are
contained below in paragraphs 30 et seq., of the present
report. The comments will be found in Annex I to the
report.
12. During its fifth session in 1953, the Commission at
its 185th to 194th meetings considered the draft in the
light of the comments of governments and of the study
of the provisional draft by its members in the interven-
ing period between the fourth and fifth sessions. As the
result, the Commission adopted a number of substantial
changes which are commented upon in the present re-
port. No reference is made to verbal changes and altera-
tions in drafting.
13. The Commission was greatly aided in its work
during the fifth session by the detailed commentary pre-
pared by the Secretariat in accordance with a decision
taken at the fourth session by reference to article 20 of
the Statute. In the opinion of the Commission that
commentary, which contains an account and analysis of
the existing practice in the matter of arbitral procedure
and of available jurisprudence and doctrine, constitutes
a valuable contribution to the study and the application
of the law of arbitral procedure. It is also the view of
1 See the report of the International Law Commission cover-
ing the work of its fourth session, Official Records of the Gen-
eral Assembly, Seventh Session, Supplement No. 9, document
h 11-14
the Commission that, after being revised and supple-
mented by the Secretariat in the light of the decisions
taken by the Commission at its fifth session, the com-
mentary should be published.
14. The term "arbitral procedure" as used in the title
of the draft (see paragraph 57) refers to arbitral pro-
cedure in its wider sense, i.e., provisions for safeguard-
ing the effectiveness of arbitration engagements ac-
cepted by the parties, as well as clauses relating to the
constitution and powers of the tribunal, the general
rules of evidence and procedure, and the award of the
arbitrators. The Commission did not consider it neces-
sary to frame detailed rules of procedure on the lines of
those embodied, for instance, in the Rules of the Inter-
national Court of Justice. Such detailed rules of pro-
cedure are liable to vary according to the circumstances
of each arbitration. On the other hand, it is probable
that the parties may find it useful in some cases to have
before them a collection of rules of arbitral procedure
in the more limited and technical sense of the term. The
Commission considers it desirable that the commentary
to be prepared by the Secretariat and referred to in
paragraph 13 above should contain as an annex a collec-
tion of rules of arbitral procedure in the sense just
mentioned.
II. THE OBJECT AND NATURE OF THE DRAFT ON
ARBITRAL PROCEDURE
15. The present draft on arbitral procedure has a dual
aspect. While in some matters, which are of a funda-
mental nature, it does no more than codify the existing
law of international arbitration, in other respects its
provisions are in the nature of a formulation, de lege
ferenda, of what the Commission considers to be de-
sirable developments in this field of arbitral procedure.
The Statute of the Commission clearly envisages, and
regulates separately, these two functions. This does not
mean that these two functions can be invariably-or
even normally-kept apart in the drafts prepared by
the Commission. In the case of some topics it may be
possible to limit the function of the Commission to one
or the other of these two fields of its activity. In the
case of other topics these two functions must be com-
bined if the Commission is to fulfil its dual task of, in
the language of Article 13 of the Charter of the United
Nations, "progressive development of international law
and its codification". At the same time the Commission
considers it of utmost importance that the difference be-
tween these two aspects of its activity should be con-
stantly borne in mind.
A/2163, paragrap s
2 Ibid., paragraph 24. Codification of the law of arbitral procedure
3 The Government of Uruguay transmitted to the Commis-
sion the comments of the Faculty of Law and Social Sciences 16. The Commission considers that, with regard to the
in Montevideo and of the Uruguayan Institute of International basic features of the law of arbitral procedure, the pres-
Law. These comments were received too late to be taken into ent draft is no more than a codification of existing law.
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Accordin to es AP is he aw and practice, international with regard to certain procedural safeguards for secur-
g
arbitration is a procedure for the settlement of disputes ing the effectiveness, in accordance with the original
between States by a binding award on the basis of law common intention of the parties, of the undertaking to
and as the result of an undertaking voluntarily accepted. arbitrate. Without expressly departing from any estab-
It is also of the essence of the traditional law of arbitral lished rule, the Commission has gone in this respect
procedure, fully maintained in the present draft, that outside the existing law by devising, for the acceptance
the arbitrators chosen should be either freely selected by of governments, such machinery as is calculated to safe-
the parties or, at least, that the parties should have been guard the effectiveness of the obligation, freely under-
given the opportunity of a free choice of arbitrators. taken, to submit to arbitration an existing dispute or
The same principle of free determination by the parties future disputes.
applies to the competence of the arbitral tribunal, the 19. As past experience has shown, the obligation to
law to be applied and the procedure to be followed by settle a dispute or future disputes by arbitration may
the tribunal.
17. All these features of the traditional law of arbitral
procedure have been preserved in the present draft.
Thus, article 1 of the draft lays down that the obligation
to arbitrate results from an undertaking voluntarily
accepted by the parties. Article 3, paragraph 1, and
article 4 expressly embody the principle that, in the
first instance, the tribunal must be constituted by the
parties. Article 6 reaffirms that principle in the case of
all vacancies for which the parties are not responsible.
Articles 9 and 10 safeguard for the parties the right to
determine by agreement the powers and the procedure
of the tribunal. Article 12 gives expression to the prin-
ciple that, in the absence of special rules agreed upon by
the parties, the law to be applied by the arbitral tribunal
is identical with the law administered by the Interna-
tional Court of justice by virtue of Article 38 of its
Statute, namely, in addition to the subsidiary sources
therein enumerated, the rules and principles of inter-
national law-customary and conventional-and general
principles of law recognized by civilized States. Chapter
V of the draft, which affirms the principle of the bind-
ing force of the award, provides at the same time the
necessary judicial safeguards of the legal character of
the award in the matter of the form and the publicity
of the award as well as of its interpretation. While,
once more in accordance with arbitral practice, the
award is considered as final without possibility of ap-
peal. provision is made, in chapters VI and VII of the
draft, for exceptional remedies calculated to uphold the
judicial character of the award as well as the will of the
parties as a source of the jurisdiction of the tribunal.
This the draft attempts to achieve in the articles bearing
on the procedure of revision and annulment in cases in
which the award fails to measure up to certain funda-
mental procedural safeguards and, above all, in cases
in which the arbitral tribunal has exceeded the powers
conferred upon it by the parties. Respect for the will of
the parties, in the matter of the competence conferred
upon the tribunal to settle the dispute, is an essential
requirement of arbitration. Excess of such powers,
when duly declared by an impartial authority to have
taken place, is a cause of nullity. These essential fea-
tures of traditional international arbitration-and, in
fact, of arbitration in general-have been meticulously
followed in the draft. They constitute its main feature.
To that extent the present draft on arbitral procedure
must be considered as being primarily in the nature of
codification of existing international law.
B
Development of the law of arbitral procedure
18. While with regard to what must be considered as
the primary aspect of international arbitration the
present draft codifies existing law, it proceeds, in a
distinct sense, by way of developing international law
)e rustratec rn a number of contingencies-all of
which the Commission has attempted to cover in the
present draft.
20. In the first instance, when an undertaking to arbi-
trate is invoked by a party, the other party may main-
tain that the subject matter of the dispute is not covered
by the obligation to arbitrate. By claiming the right to
decide unilaterally on the correctness of `its view, that
party may render illusory its legal obligation to submit
the dispute to arbitration. Article 2 of the draft makes
that result legally impossible by providing for a binding
decision of the International Court of justice on the
disputed question of the arbitrability of the dispute. It
must be noted that the only innovation which the draft
has introduced in this connexion is that machinery has
been established where it does not already exist. The
legal power of the arbitral tribunal to decide on the
question of the arbitrability of the dispute-i.e., the
question whether the dispute conies within the scope of
the obligation to arbitrate--is a well-established prin-
ciple of international and national jurisprudence. How-
ever, it is essential to provide for the determination of
this question in cases where there is not as yet in ex-
istence a tribunal constituted by the parties.
21. Secondly, the parties-while not disagreeing on
the arhitrability of the dispute-may have failed to
make provision for the effective constitution of the
arbitral tribunal. It is also possible, and practice has
shown that this is no mere theoretical possibility, that
notwithstanding the presence of the requisite provisions
for the constitution of the tribunal, a party may refuse
to co-operate in the constitution of the tribunal. Article
3 of the draft is intended to meet these contingencies
by conferring upon the President of the International
Court of justice the power to make the necessary ap-
pointments.
22. Thirdly, there may be a failure of the arbitral pro-
ceedings--and the ensuing frustration of the common
intention of the parties to arbitrate-in consequence of
the withdrawal of an arbitrator of his own accord or
at the instance of the government responsible for his
appointment. Articles 5 to 8 of the draft are designed to
avoid that result by laying down the principle of the
immutability of the tribunal, once it has been consti-
tuted, except in specified cases, and by creating the
requisite machinery for the filling of vacancies regard-
less of whether they arise in contingencies authorized in
the draft or whether they are due to action taken in
violation of its provisions.
23. Fourthly, while the draft recognizes the necessity
for a compromis, or any similar instrument adequate
for the purpose, adopted by agreement of the parties
either as part of the original undertaking or subsequent
thereto, it does not permit the principal undertaking to
be stultified as the result of the failure of the parties to
agree on the compromis. For this reason, article 10 of
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the draft includes detailed provisions for the drawing
up of the compromis by the arbitral tribunal in cases in
which the parties have failed to reach agreement on the
subject. Similarly, with the same object in view, article
13 confers upon the tribunal the power to formulate its
rules of procedure whenever the compromis, or its
equivalent, fails to cover the matter wholly or in part.
24. Fifthly, in order to secure the effectiveness of the
principal obligation to submit the dispute to a final and
complete settlement by arbitration, the draft contains
provisions for the obligatory jurisdiction of the arbitral
tribunal with regard to counter-claims arising directly
out of the subject matter of the dispute (article 16),
for the power of the tribunal to decree provisional
measures to be taken for the protection of the respective
interests of the parties (article 17), for the right of the
tribunal to extend, at the request of either party, the
time limit for the rendering of the award as originally
fixed by the parties (article 23), and for its power,
subject to proper safeguards, to render an award in
cases in which one of the parties has failed to appear
before the tribunal (article 20).
25. Finally, the draft includes articles intended to
secure the effectiveness of the undertaking to arbitrate
in connexion with the revision and the annulment of
the award as provided in chapter VI and VII of the
draft. While the award is, in principle, final and not
subject to appeal, the Commission felt it essential to
recognize the legal right of the parties to ask for the
revision of the award in case of discovery of new ma-
terial facts, as defined in article 29, or for its annulment
on important grounds enumerated in article 30. These
include, in particular, excess of jurisdiction on the part
of the arbitral tribunal. However, as past experience has
shown, these essential remedies-unless accompanied by
machinery ensuring the impartial ascertainment of the
existence of the reasons invoked for the revision or the
declaration of the nullity of the award-may render
ineffective the legal obligation of a final settlement of a
dispute through arbitration. The purpose of articles 29
and 31 is to provide such machinery.
26. The considerations referred to in the preceding
paragraph apply in particular to the question of nullity
on account of excess of jurisdiction. It is a fundamen-
tal-and inescapable-principle of jurisprudence that
an arbitral tribunal must have the power to determine
its competence on the basis of the instrument which is
the source of its jurisdiction. It is a no less fundamental
principle that an award rendered in excess of the powers
conferred by that instrument is null and void. The satis-
factory operation of these two equally essential prin-
ciples can be assured only by an impartial judicial
authority competent to decide whether there has taken
place excess of jurisdiction. Article 31 of the draft is
intended to resolve that difficulty which in the past has
frequently proved detrimental to the cause of interna-
tional arbitration and to the authority of international
law.
27. In the view of the Commission, while the provi-
sions of the draft referred to above constitute pro-
cedural innovations and while to that extent they fall
within the orbit of development of international law
inasmuch as their object is to safeguard the effective-
ness of undertakings voluntarily undertaken, they are
not otherwise innovations at all. In that respect their
sole purpose is to safeguard the principle of good faith
and the equally fundamental principle of respect for
treaty obligations. Both these principles are at the very
28. Certain members of the Commission were of the
opinion that the draft prepared by the Commission went
far beyond the scope of arbitral procedure and con-
tained substantive provisions contrary to the notion of
arbitration as conceived in existing international law.
They argued in particular that the draft tended to im-
pose on contracting States an obligation to arbitrate
even when the parties were unable to agree on the
compromis so that no definite undertaking to arbitrate
had been entered into ; that the draft purported in many
instances to make the arbitration effective where there
was an absence of will by the parties, and that by un-
duly extending the powers of arbitral tribunals it
tended to transform these bodies into a kind of supra-
national court of justice. They also pointed out that the
draft, by making provision in several places for the
intervention of the International Court of justice in
arbitral procedure, was making every arbitration case
subject to the supervision and jurisdiction of that Court.
They stressed that the general tendency of the draft, as
well as all its provisions implying the abandonment of
certain substantial rights of States in favour of arbitral
tribunals, were incompatible with the fundamental prin-
ciple of State sovereignty on which international law
rested.
29. For reasons stated in the preceding paragraphs
and in those which follow, the Commission was unable
to accept these views. In particular, the Commission was
unable to share the view that the procedural safeguards
for the effectiveness of the obligation to arbitrate are
derogatory to the sovereignty of the parties. The Com-
mission has in no way departed from the principle that
no State is obliged to submit a dispute to arbitration
unless it has previously agreed to do so either with re-
gard to a particular dispute or to all or certain cate-
gories of future disputes. However, once a State has
undertaken that obligation, it is not inconsistent with
principles of law or with the sovereignty of both parties
that that obligation should be complied with and that
it should not be frustrated on account of any defects in
hitherto existing rules of arbitral procedure. For that
reason, the Commission was unable to share the view
that the draft departs from the traditional notion of
arbitration in a manner inconsistent with the sover-
eignty of States inasmuch as it obliges the parties to
abide by procedures adopted for the purpose of giving
effect to the obligation to arbitrate. For that obligation
is undertaken in the free and full exercise of sover-
eignty. While the free will of the parties is essential as
a condition of the creation of the common obligation to
arbitrate, the will of one party cannot, in the view of
the Commission, be regarded as a condition of the
continued validity and effectiveness of the obligation
freely undertaken.
III. THE CHANGES INTRODUCED IN THE DRAFT DURING
THE FIFTH SESSION
30. The alterations which the Commission introduced
in the draft in the course of its fifth session have been
prompted in many cases by the observations of various
governments. Apart from changes in drafting, these
alterations have aimed, in some cases, at simplifying the
procedure previously formulated. In other cases, further
study has revealed certain gaps which the Commission
has now thought it desirable to fill. It is convenient to
make some comment on the changes thus introduced.
31. In article 3, which is concerned with the consti-
tution of the arbitral tribunal, it was thought desirable
basis of international law. to simplify the procedure previously formulated and
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 to shorten the rresulting deiayss RD el`iimin ting08coursClA-DiDP58t00e is in principle 00 a000essity for a compromis
to third States for assistance in the constitution of the defining the dispute and some essential elements of the
tribunal. On the other hand, the present draft now arbitration which is to take place, ' such as the method
completes the scheme formulated in the previous draft of constituting the tribunal and the number of arbi-
by making provision for the determination of the com- trators. This is so for the reason that, unlike in the
position of the tribunal-i.e., of the number of arbi- case of a permanent organ such as the International
trators-by the President of the International Court of Court of justice which possesses its own constitution
Justice, or the judge acting in his place, in case the and rules of procedure, in the case of arbitration the
compromis, or its equivalent, is silent on the matter or relevant provisions must be expressly formulated. How-
if no agreement can be reached between the parties on ever, as in the previous draft, the Commission felt that
the subject. Similarly, the draft now makes provision no such special compromis is necessary where the gen-
for the designation of the president of the tribunal in eral arbitration agreement already includes provisions
cases in which the arbitrators appointed by the parties which suffice for the purpose. In such cases-and this is
have been unable to agree on his appointment or if his an innovation introduced in the present draft-the Com-
appointment has not materialized for some other reason. mission considered that a unilateral application, by
32. The present draft clarifies the articles which bear either party, should be sufficient for the initiation of the
on the permanency and immutability of the tribunal as proceedings before the tribunal. This is the purpose of
an organ independent of any unilateral action of the paragraphs 1 and 2 of article 10 of the draft. The same
parties initially responsible for its creation. While the paragraphs devise machinery for the cases in which the
draft gives full effect to the traditional principle that view of one party that there exist already sufficient ele-
the parties must have the full opportunity of a free ments of a workable compromis is challenged by the
choice of arbitrators, that freedom does not extend to other party. That machinery gives scope for agreement
the right to change unilaterally the composition of the to be reached by the parties on that disputed issue. In
tribunal subsequent to the commencement of the pro- the event of failure to reach such an agreement-as in
ceedings. Accordingly, there is no longer in article 7 of the case of a total absence of a compromis-the present
the draft any reference to the withdrawal of an arbi- draft, like the previous draft, provides for the eventual
trator by a party. For the same reason, the present drawing up of the compromis by the arbitral tribunal.
draft, following the previous draft, does not permit an As at other stages of arbitration, the failure of the
arbitrator to withdraw except with the permission of the parties to reach agreement on a particular issue must
tribunal. It must be assumed that in proper cases, such not be allowed to frustrate the obligation to arbitrate.
as illness or personal circumstances which make it It will be noted that article 3 makes provision, in the
difficult for the arbitrator to continue in his office, that absence of agreement of the parties, for the constitu-
permission will not be withheld. At the same time, the tion of the tribunal. There will thus always be in ex-
draft makes provision against the work of the tribunal istence a tribunal able to draw up the corn promis.
being frustrated by the withdrawal of an arbitrator for 35. The Commission has also considered it desirable to
reasons not approved by the tribunal. In such cases, it reduce the difficulties arising out of the necessity of a
is laid down, the vacancy shall be filled in the manner compromis. It did so by altering article 9 in the sense
prescribed for the cases in which the parties have been that it reduced substantially the number of obligatory
unable to agree on the appointment of arbitrators. Thus, elements of a compromis.
although illicit withdrawal on the part of an arbitrator 36. Following the suggestions contained in the obser-
may cause some delay in the proceedings, it can no vations of some governments, article 16 regarding the
longer bring them permanently to a standstill. powers of the tribunal in the matter of counterclaims
33. For the latter reason it has been found unneces- has been somewhat modified in the present draft. That
sary, unlike in article 7, paragraph 3, of the previous article as now proposed emphasises more conspicuously
draft, to lay down that in the case of the withdrawal of than did the previous draft that counter-claims, in order
an arbitrator the remaining members of the tribunal to be subject to the jurisdiction of the tribunal, must be
shall have the power to continue the proceedings and directly connected with the original dispute. While it is
render an award. Such a procedure would hardly be of importance, as stated in the previous draft, to secure
warranted in cases in which the withdrawal takes place "a complete settlement of the dispute", it is no less
with the consent of the tribunal. However, even in cases essential to keep the jurisdiction of the tribunal within
in which an arbitrator has withdrawn in face of the re- the compass of the original undertaking to arbitrate. In
fusal of the tribunal to allow him to do so, the Com- the long run the cause of international arbitration stands
mission is of the opinion that the sanction as previously to gain if the law of arbitral procedure is framed in
proposed was both too drastic and unnecessary. Un- terms which will effectively discourage any undue ex-
doubtedly, cases have occurred in the past in which the tension of the competence of arbitral tribunals in a
tribunal, after a national arbitrator has withdrawn, manner neglectful of the terms of the arbitration agree-
continued with its work and rendered an award. This ment.
was probably unavoidable seeing that no machinery was 37. While the Commission has thus consistently ad-
at that time in existence for filling the vacancy created hered to the principle that the will of the parties is the
by the illicit withdrawal of an arbitrator. Once such primary source of the authority of the arbitral tribunal,
machinery is created-as is the case in the present draft it has attached the greatest possible importance to the
-there is no longer any reason for an incomplete tri- view that, once begun, the arbitral proceedings must
bunal to proceed with the case. be conducted, within the framework of the undertaking
34. The Commission gave detailed consideration to to arbitrate, in such a manner as to secure the efficiency
the question of the cornprornis and the consequences and the ultimate effectiveness of the arbitration. For
resulting from the inability of the parties to agree on that reason the Commission has modified article 23 of
its contents. In conformity with its previous draft, the the previous draft relating to the powers of the tribunal
Commission, in revising articles 9 and 10, acted on the to extend the time limits, as fixed by the parties, within
view that, in addition to any general undertaking to ar- which the award must be rendered or the work of the
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tribunal concluded. A time limit of this nature con- sion were of the opinion that the expression "widest"
stitutes a frequent feature of arbitration agreements. was superfluous inasmuch as it did not add to the sub-
According to article 23 of the previous draft, the tri- stance of the article, the Commission decided that, even
burial had no power, except with the consent of both at the cost of some redundancy of expression, it was
parties, to extend the period originally fixed by them, desirable to leave no doubt as to the application of so
but, according to paragraph 2 of that article, the tri- fundamental a principle of arbitral procedure. In the
burial was free to decide to refrain from rendering an opinion of the Commission, the competence of the
award if the parties could not agree on granting it an arbitral tribunal to decide, within the limits of the
extension of the time limit which it considered essen- obligation to arbitrate, the scope of its jurisdiction in-
tial'to a proper discharge of its functions. The Commis- cludes also the right to supplement the compromis in all
sion, at its present session, considered that solution cases in which such action is essential for ensuring the
unsatisfactory. Article 23 now gives the tribunal the conduct of the arbitration with a view to a final settle-
power, with the consent of either party, to extend the ment of the dispute. For that reason, the Commission
time limit as originally fixed. found it unnecessary to state expressly what is already
38. The Commission gave careful consideration to implied in article 13, namely, that the tribunal is com-
the. criticism of the previous draft in the matter of re- petent to formulate any rule of procedure not covered
vision and declaration of nullity of the award. It de- in the compromis or, generally, in the undertaking to
cided, while otherwise fully adhering to the principle arbitrate. Article 13 provides that, in the absence of any
of the finality of the award, that the exceptional reme- agreement between the parties concerning the procedure
dies-permitted within rigidly fixed limits-of revi- of the tribunal, the latter shall be competent to formu-
sion and nullification must be maintained, subject to late its rules of procedure. It is evident that if the
minor changes. Thus, in the matter of revision, which tribunal has the power, in the absence of agreement
is confined to the case of discovery of new material between the parties, to lay down the entire procedure, it
facts, it restricted in article 29 the availability of that is also entitled-and bound-to do so with regard to any
remedy to a period of ten years. Similarly, in article 31, particular question of procedure. Similarly, it was
it limited to six months the period within which an ap- found unnecessary to state expressly that the tribunal
plication for a declaration of nullity can be made on the possesses the power, in the absence of agreement be-
ground of corruption. After considerable discussion tween the parties, to supplement the compromis. If, in
it decided, having regard to the paramount requirement the absence of such agreement, the tribunal is compe-
of finality, not to amplify-subject to one apparent tent to draw up the entire compromis, it obviously can.
'exception-the grounds on which the annulment of the do so with regard to any particular question which nat-
award may be sought. That exception consists in the urally forms part of the cornpromis and the regulation
express reference to the failure to state the reasons of of which the tribunal considers necessary for the con-
the: award. Such omission is now included within the duct of the proceedings.
notion of "a serious departure from a fundamental rule 43. The Commission considered in detail the sugges-
of procedure" which constitutes one of the grounds on tion that article 14 which provides that "the parties are
which the validity of the award may be challenged. equal in any proceedings before the tribunal" should be
39. On the other hand, the Commission decided not omitted as merely formulating the somewhat obvious
to treat the nullity of the compromis or, generally, of principle of impartiality. Some members of the Com-
the undertaking to arbitrate as a reason of nullity of the mission felt, and the Commission eventually acted on
award. The Commission considered that, however rele- that view, that, having regard to some occurrences in
vant that factor may be in principle, any attempt to take the past history of international arbitration, it was ad-
it into account is bound to give rise to serious difficulties visable to put that basic principle formally on record.
and, possibly, to abuse. Thus, for instance, the ques- 44. The Commission also examined the suggestion
tion of the nullity of the cornprotinis may become closely that article 22, which empowers the tribunal to take note
connected with the complicated problem of constitu- of a settlement reached by the parties and to embody it
tional limitations upon the treaty-making power. in an award, should be changed in the direction of mak-
40: Reference may be made to certain provisions in the ing the exercise of that power obligatory upon the
previous draft which the Commission considered by tribunal. The Commission felt that no change is indi-
cated in this respect. Although the will of the parties to
reference to some proposed changes and which for the arbitration is, as a rule, decisive for the liquidation
various reasons it decided to leave unaltered : of the dispute, it was considered that cases may arise
41. In paragraph 2 of article 4 the Commission de- in which it would be improper to give the dignity and
cided to introduce no change with regard to the provi- the force of an arbitral award to a settlement which is
sion requiring "recognized competence in international inconsistent with overriding principles of international
law" on the part of the arbitrators. The Commission law or which is the result of pressure exercised upon
felt that the qualifying phrase "subject to the circum- one party in a manner which cannot properly be coun-
stances of the case" made full provision for cases which tenanced by a judicial organ independent, when once
justified a departure from the general rule adopted in constituted, of the will of the parties. Obviously, there
the article. The rule as previously adopted, and as now is nothing to prevent both parties from agreeing to
maintained, is more in the nature of a guide to the par- discontinue the proceedings.
ties with a view to lending emphasis to the judicial 45. The Commission considered afresh the question
nature of arbitration. It is not an imperative condition whether it was proper to lay down that in some cases--
of the validity of the constitution of the tribunal. such as in article 3, paragraph 2, article 8, paragraph 2,
42. In article 11 the Commission decided to retain article 28, paragraph 2, article 29, paragraph 4, and
the formulation of the previous draft declaring that article 31, paragraph 1-the International Court of
"the tribunal, which is the judge of its own compe- Justice or its President shall assume certain functions
tence, possesses the widest powers to interpret the or take certain acts. The Commission felt that, as the
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organ of the United Nations, it is proper, with regard
to an instrument brought into existence under the aegis
of the United Nations, that certain functions or powers
shall be conferred upon the Court and that it was un-
necessary that the Court should in each case signify the
acceptance of the powers and functions thus conferred
upon it. It was also noted that the simple conferment
of such powers, without any further formalities, con-
stitutes a frequent feature of instruments of pacific
settlement.
46. The Commission examined the question whether,
in those cases in which reference is made to the juris-
diction of the International Court of justice and in
which one or both parties are not parties to the Statute
of the International Court of justice, it is necessary to
provide for some particular procedure. The Commis-
sion considered that such cases are covered by the pro-
visions of Article 35, paragraph 2, of the Statute of the
International Court of justice, and by the resolution
adopted by the Security Council on 15 October 1946 in
pursuance of those provisions.
47. While it is unnecessary to draw attention to mere
drafting changes, reference may be made to some minor
alterations of substance, in relation to the previous
draft, as illustrating the nature of the task of revision
on which the Commission was engaged. Thus, in article
15, paragraph 2, the Commission eliminated that part
of the relevant provision which imposed upon the par-
ties the duty to co-operate with each other-as distin-
guished from co-operation with the tribunal-in the
production of evidence. It was considered that such
obligatory co-operation between the parties, although
corresponding to the practice of private arbitration fn
some countries, went beyond the accepted international
practice and, perhaps, the requirements of international
arbitration. In paragraph 4 of article 15, which is con-
cerned with visits to the scene to which a case relates
(descente sur les lieux), the Commission has now
adopted the rule that the party requesting such visits
ought to be responsible for the cost involved. With re-
gard to the rectification of the award, the Commission
has adopted, in article 27, a more precise and detailed
formulation of the powers of the tribunal.
IV. TIIE AUTONOMY OF THE PARTIES
48. In the course of its examination of the draft, both
at the fifth and at the preceding sessions, the Commis-
sion was anxious to preserve what it considers to be the
essential feature of international arbitration as dis-
tinguished from the more institutionalized procedure
of international judicial settlement. That essential fea-
ture is the autonomy of the will of the parties both with
regard to the choice of the arbitrators, the law to be
applied and the procedure of the arbitral tribunal. Some
aspects of the freedom of the parties, thus conceived,
have been indicated in paragraph 17 above. That free-
dom of the parties is limited only by the following basic
considerations : the first is that the procedure adopted,
both prior and subsequent to the beginning of the pro-
ceedings, must not be such as to frustrate the common
free will of the parties, as expressed in the original
undertaking to arbitrate, to settle the dispute by arbi-
tration. The second basic requirement is that there must
be no impairment of the binding character of the award.
Apart from these fundamental considerations, the pro-
cedure as formulated in the draft is, in general, of an
optional character. It comes into operation only to the
extent to which the parties have not adopted different
provisions not inconsistent with the basic considera-
tions as stated.
49. That feature of the draft may be somewhat ob-
scured-if not sufficiently explained-by the fact that
in a number of articles of the draft the relevant clause
is prefaced by the proviso "unless otherwise agreed by
the parties" or a form of words to that effect. Thus in
article 2, providing for a determination of the arbitra-
bility of a dispute by the International Court of justice,
that procedure is made obligatory only "in the absence
of agreement between the parties upon another pro-
cedure". Article 12 specifies what shall be the law ap-
plied by the arbitral tribunal ; but this is so only "in
the absence of any agreement between the parties con-
cerning the law to be applied". Similar provisions ap-
pear in paragraph 2 of article 28 relating to the inter-
pretation of the award, in paragraph 4 of article 29
bearing upon the revision of the award, and in article
32 referring to the settlement of the dispute subsequent
to a declaration of the nullity of the award.
50. The fact that the insistence on the autonomy of
the parties is clearly brought out in some articles does
not mean that, subject to the two basic requirements out-
lined in paragraph 48 of the present report, it is ex-
cluded in other cases. On the contrary, most of the
provisions of the draft do not rule out the adoption of
a different procedure by the parties. Thus, to limit
the examples to those drawn from-chapter IV of the
draft relating to the powers of the tribunal, there is
nothing in article 15, which makes the tribunal the
judge of the admissibility of evidence, to prevent the
parties from laying down that certain evidence shall be
conclusive, that in some matters-for instance, those
covered by a period of prescription as defined by the
parties-no contrary evidence shall be admissible, or
that some forms of evidence shall not be permitted by
the tribunal. With regard to article 16 relating to
counter-claims, the parties are free to provide that no
counter-claim shall be admissible. With regard to ar-
ticle 18 which, on the face of it, is concerned with oral
procedure, there is nothing to prevent the parties from
agreeing that the procedure before the tribunal shall
be limited to the presentation of the written argument.
What the parties cannot do is to adopt, with a binding
effect, a procedure which may result in the frustration
of the proceedings at the instance or as the result of
the conduct of one party. Thus, to limit the examples to
the same chapter IV, the parties cannot validly lay
down, with regard to article 11, that the tribunal shall
not have the power to determine its competence or to
interpret the compromis, and that in the absence of
agreement between the parties on these questions the
tribunal shall be functus officio. Similarly, with regard
to article 20 relating to the judgment by default, the
parties cannot validly provide that if one of them re-
fuses to appear before the tribunal .and to defend its
case, the tribunal shall terminate its proceedings and
abstain from rendering an award. Provisions of that
nature would be contrary to the fundamental purpose of
the arbitration. If adopted by the parties, they would
have to be disregarded by the tribunal. They would not
have the result of nullifying the compromis.
51. Similarly, with regard to chapter V relating to
the award, there is nothing to prevent the parties from
modifying some of the provisions of the draft in a
manner calculated to meet the exigencies of a particular
situation. Thus, with regard to article 24, they may pro-
vide that the award, which shall remain secret for a
time, shall be communicated to the parties without hav-
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ing been read in open court. They may also lay down
that the award shall be signed by the President only.
With regard to article 25, they may exclude the right
of the arbitrators to append dissenting opinions. What
the parties cannot do is to adopt a procedure or solu-
tions which may result at this late stage, in the frus-
tration of the arbitration or its purpose. Thus, with re-
gard to article 28, they cannot validly provide that if
they do not agree on the interpretation of the award
the latter shall be without effect.
52. The examples referred to above are, it is hoped,
sufficient to bring into relief what is an essential fea-
ture of this draft on arbitral procedure, namely, that
subject to the overriding purpose of arbitration, which
purpose is to achieve a binding settlement between the
parties independent of the will of any single one of
them, the autonomous will of the parties is the basis
of arbitration both in the matter of the existence of the
obligation to arbitrate and the procedure calculated to
give effect thereto. It may be asked why, if as a rule
the constitution of the tribunal and its procedure are
a function of the will of the parties, it was thought
necessary in some cases to provide so expressly. The
answer is that in some cases the solution adopted in
the draft is necessarily couched in terms of regulations
so detailed and explicit that, unless its apparent rigidity
is modified by express reference to the possibility of an
alternative solution by the parties, it may create the
impression of being invariably obligatory. This was not
the intention of the Commission.
V. ACTION RECOMMENDED WITH REGARD TO
THE DRAFT
53. In the matter of the final drafts adopted by the
Commission, its Statute provides, in article 16 (j), with
regard to final drafts falling under the head of pro-
gressive development of international law, that "the
Commission shall submit the draft so adopted with its
recommendations through the Secretary-General to the
General Assembly". With regard to final drafts falling
within the purview of codification of international law,
article 22 of the Statute provides that after having
taken into consideration the comments of governments
"the Commission shall prepare a final draft and ex-
planatory report which it shall submit with its recom-
mendations through the Secretary-General to the Gen-
eral Assembly". Article 23, paragraph 1, of the Statute
provides as follows :
"The Commission
Assembly :
may recommend to the General.
"(a) To take no action, the report
been published ;
having already
"(b) To take note of or adopt the report by reso-
lution ;
"(c) To recommend the draft to Members with a
view to the conclusion of a convention ;
"(d) To convoke a conference to conclude a con-
vention."
54. As pointed out above, the present final draft of the
Commission falls within the category both of the pro-
gressive development and the codification of interna-
tional law. It is probable that the same cumulation of
functions must apply, in varying proportions, to other
aspects of the work of the Commission. Thus, the ,posi-
tion is similar with respect to the questions of the
continental shelf and of statelessness covered by chap-
ters III and IV of the report. So far as recommenda-
tions proposed by the Commission are concerned, it
seems to matter little whether a final draft falls within
the category of development or that of codification.
While article 23 of the Statute, as quoted above, spec-
ifies the kind of recommendations which the Commis-
sion may make to the General Assembly on any given
subject, article 16 (j) refers to recommendations gen-
erally. There seems to be no reason for any differen-
tiation between the two kinds of recommendation.
Neither does it appear that any such differentiation was
intended.
55. In the opinion of the Commission the final draft
on arbitral procedure as adopted calls for action, on
the part of the General Assembly, contemplated in para-
graph (c) of article 23 of the Statute of the Com-
mission, namely, "to recommend the draft to Mem-
bers with a view to the conclusion of a convention".
The Commission makes a recommendation to that
effect.
56. The Commission believes, in the light of its study
of the subject over a period of years, that a convention
on arbitral procedure, on the basis formulated in the
Commission's final draft, is highly desirable. While it
is to be hoped that the activity and the jurisdiction of
the International Court of justice will substantially
increase, it is clear, in the light of experience, that in-
ternational arbitration will continue to constitute a
widely accepted means of pacific settlement through
binding decisions based on law. Moreover, if and when
the work of the Court increases, settlement through
arbitration-especially of such disputes which are of
limited compass and which require speedy adjudication
-will increasingly recommend itself to governments.
This being so, it seems of importance to the cause of
international pacific settlement and of the authority of
international law that the law on the subject should be
clarified and supplemented with the view to rendering
international arbitration as workable, as effective, and
as removed from the danger of frustration by unilateral
action as possible. It is no less important to provide safe-
guards for maintaining the character of international
arbitration as a procedure based on law and as inde-
pendent in its progress of any influence of the govern-
ments bound by the obligation, voluntarily undertaken,
to settle by arbitration an existing dispute or future dis-
putes. At the same time it is no less important to main-
tain the autonomous nature of arbitration as created
in the first instance by the will of the parties who, sub-
ject to the safeguards as indicated, must be given the
opportunity of having the dispute decided by judges of
their own choice and by a flexible procedure best suited
to the requirements of a particular dispute or any par-
ticular disputes. The present final draft aims at giving
effect to these purposes of international arbitration.
VI. TEXT OF THE DRAFT
57. The final draft on arbitral procedure, as adopted
by the Commission at its 232nd meeting, read as fol-
lows :
4 Mr. Gilberto Amado voted against several articles for rea-
sons expressed in the course of the discussion. Mr. F. I.
Kozhevnikov declared that, for reasons he had frequently given
in the course of the discussion, he had voted against the final
draft on arbitral procedure as a whole, and also against the
chapter of the report accompanying the draft, which was in the
nature of a commentary, and, in his opinion, in many instances
a one-sided commentary. Mr. J. _Zourek declared that he had
voted against the draft as a whole and against chapter two of
the report, which formed a commentary on it, for reasons
he had given in the course of the discussion.
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CHAPTER I
The undertaking to arbitrate
Article 1
An undertaking to have recourse to arbitration
may apply to existing disputes or to disputes arising
in the future.
2. The undertaking shall result from a written in-
strument, whatever the form of the instrument may
be.
3. The undertaking constitutes a legal obligation
which must be carried out in good faith.
Article 2
1. If, prior to the constitution of an arbitral tri-
bunal, the parties to an undertaking to arbitrate
disagree as to the existence of a dispute, or as to
whether an existing dispute is within the scope of the
obligation to have recourse to arbitration, such
preliminary question may, in the absence of agree-
ment between the parties upon another procedure,
be brought before the International Court of jus-
tice by application of either party. The decision
rendered by the Court shall be final.
2. In its decision on the question, the Court may
prescribe the provisional measures to be taken for
the protection of the respective interests of the
parties pending the constitution of the arbitral tri-
bunal.
CHAPTER II
Constitution of the tribunal
Article 3
1. Within three months from the date of the re-
quest made for the submission of the dispute to
arbitration, or from the date of the decision of the
International Court of justice in pursuance of article
2, paragraph 1, the parties to an undertaking to
arbitrate shall proceed to constitute the arbitral
tribunal by appointing a sole arbitrator or several
arbitrators in accordance with the compromis re-
ferred to in article 9 or with any other instrument
embodying the undertaking to arbitrate.
2. If a party fails to make the necessary appoint-
ments under the preceding paragraph within three
months, the appointment shall be made by the Pres-
ident of the International Court of ' Justice at the
request of the other party. If the President is pre-
vented from acting or is a national of one of the
parties, the appointments shall be made by the Vice-
President. If the Vice-President is prevented from
acting or is a national of one of the parties, the
appointments shall be made by the oldest member
of the Court who is not a national of either party.
3. The appointments referred to in paragraph 2
shall be made in accordance with the provisions of
the compromis or of any other instrument embody-
ing the undertaking to arbitrate. In the absence of
such provisions the composition of the tribunal shall
be determined, after consultation with the parties,
by the President of the International Court of jus-
tice or the judge acting in his place.
4. In cases where provision is made for the choice
of a president of the tribunal by the other arbitra-
tors, the tribunal shall be deemed constituted when
been chosen within two months of the appointment
of the other arbitrators, he shall be designated in the
manner prescribed in paragraph 2.
Article 4 .
1. The parties having recourse to arbitration shall
constitute a tribunal which may consist of one or
more arbitrators.
2. Subject to the circumstances of the case, the
arbitrators should be chosen from among persons of
recognized competence in international law.
Article 5
1. Once the tribunal has been constituted, its com-
position shall remain unchanged until the award
has been rendered.
2. A party may, however, replace an arbitrator
appointed by it, provided that the tribunal has not
yet begun its proceedings. An arbitrator may not be
replaced during the proceedings before the tribunal
except by agreement between the parties.
3. The proceedings are deemed to have begun
when the President or sole arbitrator has made the
first order concerning written or oral proceedings.
Article 6
Should a vacancy occur on account of death or
incapacity of an arbitrator or, prior to the com-
mencement of proceedings, the resignation of an
arbitrator, the vacancy shall be filled by the method
laid down for the original appointment.
Article 7
1. Once the proceedings before the tribunal have
begun, an arbitrator may withdraw only with the
consent of the tribunal. The resulting vacancy shall
be filled by the method laid down for the original
appointment.
2. Should the withdrawal take place without the
consent of the tribunal, the resulting vacancy shall
be filled, at the request of the tribunal in the man-
ner provided for in paragraph 2 of article 3.
Article 8
1. A party may propose the disqualification of one
of the arbitrators on account of a fact arising sub-
sequently to the constitution of the tribunal. It may
propose the disqualification of one of the arbitra-
tors on account of a fact arising prior to the con-
stitution of the tribunal only if it can show that
the appointment was made without knowledge of
that fact or as a result of fraud. In either case, the
decision shall be taken by the other members of the
tribunal.
2. In the case of a sole arbitrator the question of
disqualification shall be decided by the International
Court of justice on the application of either party.
3. The resulting vacancies shall be filled, at the
request of the tribunal in the manner provided for
in paragraph 2 of article 3.
CHAPTER III
The compromis
Article 9
Unless there are prior agreements which suffice
for the purpose, the'parties having recourse to ar-
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bitration shall conclude a compromis which shall
specify :
(a) The subject matter of the dispute;
(b) The method of constituting the tribunal and
the number of arbitrators ;
(c) The place where the tribunal shall meet.
In addition to any other provisions deemed de-
sirable by the parties, the compromis may also
specify the following :
(1) The law to be applied by the tribunal, and
the power, if any, to adjudicate ex aequo et bono;
(2) The power, if any, of the tribunal to make
recommendations to the parties;
(3) The procedure to be followed by the tribunal;
(4) The number of members constituting a quo-
rum for the conduct of the proceedings;
(5) The majority required for the award;
(6) The time limit within which the award shall
be rendered;
(7) The right of members of the tribunal to at-
tach dissenting opinions to the award;
(8) The appointment of agents and counsel;
(9) The languages to be employed in the pro-
ceedings before the tribunal; and
(10) The manner in which the costs and expenses
shall be divided.
Article 10
1. When the undertaking to arbitrate contains pro-
visions which seem sufficient for the purpose of a
compromis and the tribunal has been constituted,
either party may submit the dispute to the tribunal
by application. If the other party refuses to answer
the application on the ground that the provisions
above referred to are insufficient, the tribunal shall
decide whether there is already sufficient agreement
between the parties on the essential elements of a
compromis as set forth in article 9 to enable it to
proceed with the case. In the case of an affirmative
decision the tribunal shall prescribe the necessary
measures for the continuation of the proceedings.
In the contrary case the tribunal shall order the
parties to conclude a compromis within such time
limit as the tribunal will consider reasonable.
2. If the parties fail to agree on a compromis
within the time limit fixed in accordance with the
preceding paragraph, the tribunal shall draw up the
compromis.
3. If neither party claims that the provisions of
the undertaking to arbitrate are sufficient for the
purposes of a compromis and the parties fail to
agree on a compromis within three months after
the date on which one of the parties has notified
the other of its readiness to conclude the compro-
mis, the tribunal, at the request of the said party,
shall draw up the compromis.
Powers of the tribunal
Article 12
1. In the absence of any agreement between the
parties concerning the law to be applied, the tri-
bunal shall be guided by Article 38, paragraph 1,
of the Statute of the International Court of justice.
2. The tribunal may not bring in a finding of non
liquet on the ground of the silence or obscurity of
international law or of the compromis.
Article 13
1. All questions shall be decided by a majority of
the tribunal.
2. In the absence of any agreement between the
parties concerning the procedure of the tribunal,
the tribunal shall be competent to formulate its rules
of procedure.
Article 14
The parties are equal in any proceedings before
the tribunal.
1. The tribunal
sibility and the
to it.
Article 15
shall be the judge of the admis-
weight of the evidence presented
2. The parties shall co-operate with the tribunal
in the production of evidence and shall comply
with the measures ordered by the tribunal for this
purpose. The tribunal shall take note of the failure
of any party to comply with its obligations under
this paragraph.
3. The tribunal shall have the power at any stage
of the proceedings to call for such evidence as it
may deem necessary.
4. At the request of either party, the tribunal may
visit the scene with which the case before it is con-
nected, provided that the requesting party offers to
pay the costs.
Article 16
The tribunal shall decide on any incidental or
additional claims or counter-claims arising directly
out of the subject-matter of the dispute.
Article 17
The tribunal, or in case of urgency its president
subject to confirmation by the tribunal, shall have
the power to prescribe, at the request of one of the
parties and if circumstances so require, any pro-
visional measures to be taken for the protection of
the respective interests of the parties.
Article 18
When, subject to the control of the tribunal, the
agents and counsel have completed their presenta-
tion of the case, the proceedings shall be formally
declared closed.
Article 19
The deliberations of the tribunal, which should be
attended by all of its members, shall remain secret.
Article 20
1. Whenever one of the parties does not appear
before the tribunal, or fails to defend its case, the
The tribunal, which is the judge of its own com- other party may call upon the tribunal to decide in
petence, possesses the widest powers to interpret favour of its claim.
the compromis. 2. In such case, the tribunal may render an award
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if it is satis at as ~uris action an that to the International Court of Justice at the request
the claim is well-founded in fact and in law, of either party.
Article 21
1. Discontinuance of proceedings by the claimant
party may not be accepted by the tribunal without
the consent of the respondent.
2. If the case is discontinued by agreement be-
tween the parties, the tribunal shall take note of
the fact.
Article 22
The tribunal may take note of a settlement
reached by the parties. At the request of the parties,
it may embody the settlement in an award.
CHAPTER V
The award
Article 23
The award shall be rendered within the period
fixed by the compromis unless the tribunal, with
the consent of either party, decides to extend the
period fixed in the compromis.
Article 24
1. The award shall be drawn up in writing. It shall
contain the names of the arbitrators and shall be
signed by the president and the members of the
tribunal who have voted for it.
2. The award shall state the reasons on which it is
based.
3. The award is rendered by being read in open
court, the agents of the parties being present or duly
summoned to appear.
4. The award shall immediately be communicated
to the parties.
Article 25
Subject to any contrary provision in the com-
promis, any member of the tribunal may attach to
the award his separate or dissenting opinion.
Article 26
The award is binding upon the parties when it is
rendered. It must be carried out in good faith.
Article 27
Within a month after the award has been ren-
dered and communicated to the parties, the tribunal,
either of its own accord or at the request of either
party, shall be entitled to rectify any clerical, typo-
graphical or arithmetical error or errors of the same
nature apparent on the face of the award.
Article 28
1. Any dispute between the parties as to the mean-
ing and scope of the award may, at the request
of either party and within one month of the ren-
dering of the award, be submitted to the tribunal
which rendered the award. A request for interpreta-
tion shall stay execution of the award pending the
decision of the tribunal on the request.
2. If, for any reason, it is impossible to submit
the dispute to the tribunal which rendered the
award, and if the parties have not agreed otherwise
within three months, the dispute may be referred
Article 29
1. An application for the revision of the award
may be made by either party on the ground of the
discovery of some fact of such a nature as to have
a decisive influence on the award, provided that
when the award was rendered that fact was un-
known to the tribunal and to the party requesting
revision and that such ignorance was not due to the
negligence of the party requesting revision.
2. The application for revision must be made with-
in six months of the discovery of the new fact and
in any case within ten years of the rendering of the
award.
3. In the proceedings for revision the tribunal
shall, in the first instance, make a finding as to the
existence of the alleged new fact and rule on the
admissibility of the application. If the tribunal finds
the application admissible it shall then decide on
the merits of the dispute.
4. The application for revision shall be made to the
tribunal which rendered the award. If, for any rea-
son, it is not possible to make the application to
that tribunal, the application may, unless. the parties
agree otherwise, be made to the International Court
of justice, by either party.
CHAPTER VII
Annulment of the award
Article 30
The validity of an award may be challenged by
either party on one or more of the following
grounds:
(a) That the tribunal has exceeded its powers;
(b) That there was corruption on the part of a
member of the tribunal;
(c) That there has been a serious departure from
a fundamental rule of procedure, including failure
to state the reasons for the award.
Article 31
1. The International Court of justice shall be com-
petent, on the application of either party, to declare
the nullity of the award on any of the grounds set
out in the preceding article.
2. In cases covered by paragraphs (a) and (c)
of article 30 the application must be made within
sixty days of the rendering of the award and in
the case covered by paragraph (b) within six
months.
3. The application shall stay execution unless
otherwise decided by the Court.
Article 32
If the award is declared invalid by the Interna-
tional Court of justice, the dispute shall be sub-
mitted to a new tribunal to be constituted by agree-
ment of the parties, or, failing such agreement, in the
manner provided in article 3.
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Chapter III
I. INTRODUCTORY
58. At its first session held in 1949, the International
Law Commission elected Mr. J. P. A. Francois as spe-
cial rapporteur to study the question of the regime of
the high seas. At its second session, held in 1950, the
Commission considered a report (A/CN.4/17) by Mr.
Francois on the subject. In the report of the Commis-
sion submitted the same year to the General Assembly,
at its fifth session," the Commission surveyed the vari-
ous questions falling within the scope of the general
topic of the regime of the high seas such as nationality
of ships, safety of life at sea, slave trade, submarine
telegraph cables, resources of the high seas, right of
pursuit, right of approach, contiguous zones, sedentary
fisheries, and the continental shelf. On the basis of a
second report of the special rapporteur (A/CN.4/42)
most of these questions were reviewed at the third
session in 1951 at which, in addition, the Commission
adopted draft articles on the continental shelf and the
following subjects relative to the high seas : resources of
the sea, sedentary fisheries, and contiguous zones.s
59. At its fifth session, the Commission examined once
more, in the light of comments of governments, the
provisional draft articles adopted at the third session.
Final drafts were prepared on the following questions :
(i) continental shelf ; (ii) fishery resources of the high
seas; (iii) contiguous zone. For reasons explained
below in paragraph 71, the question of sedentary fish-
eries has not been covered in a separate article or ar-
ticles. It is hoped that the other questions relating to the
high seas may, in the course of the next few years, re-
ceive further study with the view to being embodied
in drafts to be finally submitted to the General Assem-
bly. The result will be the codification of the law cover-
ing the entire field of the regime of the high seas as
well as proposals for the further development of that
part of international law.
60. In its work on the subject the Commission de-
rived considerable assistance from a collection, in two
volumes, published in 1951 and 1952 by the Division
for the Development and Codification of International
Law of the Legal Department of the Secretariat and
entitled "Laws and Regulations on the Regime of the
High Seas".
THE CONTINENTAL SHELF
A
Draft articles on the continental shelf
61. As stated above in paragraph 58, at its third ses-
sion held in 1951 the Commission adopted draft articles,
with accompanying comment, on the continental shelf.7
See Official Records of the General Assembly, Fifth Ses-
sion, Supplement No. 12, document A/1316, Part VI, Chapter
III.
11 See the report of the Commission covering the work of its
third session, Official Records of the General Assembly, Sixth
Session, Supplement No. 9, document A/1858, chapter VII and
annex.
Approved
Subsequent to the third session the special rapporteur-
re-examined these articles in the light of observations
received from the following governments : Belgium,
Brazil, Chile, Denmark, Ecuador, Egypt, France, Ice-
land, Israel, the Netherlands, Norway, the Philippines,
Sweden, Syria, the Union of South Africa, the United
Kingdom of Great Britain and Northern Ireland, the
United States of America, Yugoslavia. The observations
of governments are reproduced in Annex II to the
present report. In March 1953, the special rapporteur
submitted a further report on the subject (A/CN.4/60).
The Commission examined the report in the course of
its fifth session at its 195th to 206th, 210th and 215th
meetings.
62. The Commission adopted, at its 234th meeting,
the following draft articles on the continental shelf :
Article 1
As used in these articles, the term "continental
shelf" refers to the sea-bed and subsoil of the sub-
marine areas contiguous to the coast, but outside
the area of the territorial sea, to a depth of two hun-
dred metres.
Article 2
The coastal State exercises over the continental
shelf sovereign rights for the purpose of exploring
and exploiting its natural resources.
Article 3
The rights of the coastal State over the conti-
nental shelf do not aff ect the legal status of the
superjacent waters as high seas.
Article 4
The rights of the coastal State over the continen-
tal shelf do not affect the legal status of the airspace
above the superjacent waters.
Article 5
Subject to its right to take reasonable measures
for the exploration of the continental shelf and the
exploitation of its natural resources, the coastal
State may not prevent the establishment or main-
tenance of submarine cables.
Article 6
1. The exploration of the continental shelf and the
exploitation of its natural resources must not result
in any unjustifiable interference with navigation,
fishing or fish production.
2. Subject to the provisions of paragraphs 1 and 5
8 Mr. Kozhevnikov declared that, in voting for the draft
articles on the continental shelf, he wished to enter a reserva-
tion in respect of articles 7 and 8, to which he was opposed
in principle for the reasons he had stated during the discussion.
Mr. Zourek declared that although he had voted for the draft
as a whole, he was opposed to articles 7 and 8, for reasons he
had explained during the discussion. Mr. Hsu and Mr. Scelle
declared that they had voted against the draft articles on the
continental shelf for reasons explained during the discussion.
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of this article, the coastal State is entitled to con- the coast, but outside the area of the territorial sea, to
struct and maintain on the continental shelf installa- a depth of two hundred metres", the Commission aban-
tions necessary for the exploration and exploitation doned the criterion of exploitability adopted in 1951 in
of its natural resources and to establish safety zones favour of that of a depth of two hundred metres as
at a reasonable distance around such installations laid down in article 1 of the present draft. The relevant
and to take in those zones measures necessary for passage of article 1 as adopted in 1951 referred to the
their protection. area "where the depth of the superjacent waters admits
3. Such installations, though under the jurisdic- of the exploitation of the natural resources of the sea-
tion of the coastal State, do not possess the status bed and subsoil". Some members of the Commission
of islands. They have no territorial sea of their own favoured the retention of the text adopted in 1951 for
and their presence does not affect the delimitation the reason, inter alia, that it is more in accordance with
of the territorial sea of the coastal State. the purpose of the draft not to adopt a fixed limit for
4. Due notice must be given of any such installa- the continental shelf but to let the territorial extension
tions constructed, and due means of warning of the of the exercise of the powers given the coastal State
presence of such installations must be maintained. depend on the practical possibilities of exploitation.
5. Neither the installations themselves, nor the said The Commission, following the considerations adduced
safety zones around them may be established in by the special rapporteur in the light of observations
narrow channels or on recognized sea lanes essen- of certain governments, has come to the conclusion that
tial to international navigation. the text previously adopted does not satisfy the re-
quirement of certainty and that it is calculated to give
Article 7 rise to disputes. On the other hand, the limit of two
1. Where the same continental shelf is contiguous
to the territories of two or more States whose coasts
are opposite to each other, the boundary of the con-
tinental shelf appertaining to such States is, in the
absence of agreement between those States or un-
less another boundary line is justified by special
circumstances, the median line every point of which
is equidistant from the base lines from which the
width of the territorial sea of each country is meas-
ured.
2. Where the same continental shelf is contiguous
to the territories of two adjacent States, the bound-
ary of the continental shelf appertaining to such
States is, in the absence of agreement between those
States or unless another boundary line is justified
by special circumstances, determined by application
of the principle of equidistance from the base lines
from which the width of the territorial sea of each
of the two countries is measured.
Article 8
Any disputes which may arise between States
concerning the interpretation or application of these
articles should be submitted to arbitration at the
request of any of the parties.
63. While adhering to the basic considerations which
underlay the articles provisionally adopted in 1951, the
Commission has now departed in various respects from
its preliminary draft. It did so having regard to replies
received from governments ; the views enunciated on
the subject by writers and learned societies; and its
own study and discussion of the problems involved.
The nature of these changes is indicated below in con-
nexion with the comments on the articles as finally
adopted.'
Comments on the draft articles
(i) The concept of the continental shelf as used in
the articles
64. In defining, for the purpose of the articles adopted,
the term "continental shelf" as referring "to the sea-
bed and subsoil of the submarine areas contiguous to
9 Mr. Yepes voted against this paragraph of the report for
reasons explained in the summary record of the 233rd meeting.
Approved
hundred metres-a limit which is at present sufficient
for all practical needs-has been fixed because it is at
that depth that the continental shelf, in the geological
sense, generally comes to an end. It is there that the
continental slope begins and falls steeply to a great
depth. The text thus adopted is not wholly arbitrary for,
as already stated, it takes into account the practical pos-
sibilities, so far as they can be foreseen at present, of
exploration and exploitation. Such unavoidable element
of arbitrariness as is contained in that text is mitigated
by the rule formulated below in paragraph 66 which
covers to a large extent the case of those States whose
waters surrounding the coast reach a depth of two
hundred metres at a very short distance from the coast.
65. While adopting, to that extent, the geographical
test of the continental shelf as the basis of the juridical
concept of the term, the Commission in no way holds
that the existence of the continental shelf in its geo-
graphical configuration as generally understood, is
essential for the exercise of the rights of the coastal
State as defined in these articles. Thus, if, as is the case
in the Persian Gulf, the submarine areas never reach
the depth of two hundred metres, that fact is irrelevant
for the purposes of article 1. The limit there laid down
is the maximum limit. It does not 'rule out from the
operation of the articles shallow submarine areas which
are contiguous to the coast and which do not attain the
depth of two hundred metres. The Commission con-
sidered the possibility of adopting a term other than
"continental shelf", seeing that in this respect as well
as in the cases referred to in the following paragraph,
it departed from the strict geological connotation of
the term. However, it was considered that, in particu-
lar, the wide acceptance of that term in the literature
counselled its retention.
66. Similarly, while adhering in general to the geo-
graphical description and characteristics of the con-
tinental shelf, the Commission envisages the possibility
and the desirability of reasonable modifications, in
proper cases, of the text thus adopted. Thus, although
the depth of two hundred metres as a limit of the conti-
nental shelf must be regarded as the general rule, it is
a rule which is subject to equitable modifications in spe-
cial cases in which submerged areas, of a depth less than
two hundred metres, situated in considerable proximity
to the coast are separated by a narrow channel deeper
than two hundred metres from the part of the conti-
nental shelf adjacent to the coast. Such shallow areas
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must, in these cases, be considered as contiguous to that
part of the shelf. It would be for the State relying on
this exception to the general rule to establish its claim
to an equitable modification of the rule. In case of dis-
pute, it must be a matter for arbitral determination
whether a shallow submarine area falls within the rule
as here formulated. Some such modification of the gen-
eral rule is necessary in order to meet the objection
that the mechanical reliance on the geological notion
of the continental shelf may result in an inequality of
treatment of some States as compared with others.
67. The expression "continental shelf" does not imply
that it refers exclusively to continents in the current
connotation of that term. It covers also the submarine
areas contiguous to islands.
(ii) The nature of the rights of the coastal State
68. While article 2, as provisionally formulated in
1951, referred to the continental shelf as "subject to the
exercise by the coastal State of control and jurisdiction
for the purpose of exploring it and exploiting its natural
resources", the article as now formulated lays down
that "the coastal State exercises over the continental
shelf sovereign rights for the purpose of exploring and
exploiting its natural resources". The formulation thus
adopted takes into account the views of those members
of the Commission who attached importance to main-
taining the language of the original draft and those who
considered that the expression "rights of sovereignty"
should be adopted. In adopting the article in its present
formulation the Commission desired to avoid language
lending itself to interpretations alien to an object which
the Commission considers to be of decisive importance,
namely safeguarding the principle of the full freedom
of the superjacent sea and the airspace above it.
69. On the other hand, the text as now adopted leaves
no doubt that the rights conferred upon the coastal
State cover all rights necessary for and connected with
the exploration and the exploitation of the natural re-
sources of the continental shelf. These rights comprise
full control and jurisdiction and the right to reserve
exploitation and exploration for the coastal State or its
nationals. Such rights include jurisdiction in connexion
with suppression of crime.
70. The Commission decided, after considerable dis-
cussion, to retain the term "natural resources" as dis-
tinguished from the more limited term "mineral re-
sources". In its previous draft the Commission only
considered mineral resources, and certain members pro-
posed adhering to that course. The Commission, how-
ever, came to the conclusion that the products of seden-
tary fisheries, in particular to the extent that they were
natural resources permanently attached to the bed of
the sea, should not be outside the scope of the regime
adopted and that this aim could be achieved by using the
term "natural resources". It is clearly understood, how-
ever, that the rights in question do not cover so-called
bottom-fish and other fish which, although living in the
sea, occasionally have their habitat at the bottom of the
sea or are bred there. Nor do these rights cover objects
such as wrecked ships and their cargoes (including bul-
lion) lying on the sea-bed or covered by the sand of the
subsoil.
71. Neither, in the view of the Commission, can the
exclusive rights of the coastal State be exercised in a
manner inconsistent with existing rights of nationals
of other States with regard to sedentary fisheries. Any
sitated by the requirements of exploration and exploi-
tation of natural resources, is subject to rules of inter-
national law ensuring respect of the rights of aliens.
However, apart from the case of such existing rights,
the sovereign rights of the coastal State over its con-
tinental shelf cover also sedentary fisheries. It may be
added that this was the reason why the Commission did
not think it necessary to retain, among the articles de-
voted to the resources of the sea, an article on sedentary
fisheries. The Commission envisaged the possibility
that shallow areas rendering possible the exploitation of
sedentary fisheries may exist outside the continental
shelf. However, that possibility was considered to be at
present too theoretical to necessitate separate treatment..
72. The rights of the coastal State over the continental
shelf are independent of occupation, actual or fictional,
and of any formal assertion of those rights.
73. The Commission does not deem it necessary to
elaborate the question of the nature and of the legal
basis of the sovereign rights attributed to the coastal
State. The considerations relevant to this matter cannot
be reduced to a single factor. In particular, it is not
possible to base the principle of the sovereign rights of
the coastal State exclusively on recent practice, for there
is no question, in the present case, of giving the author-
ity of a legal rule to a unilateral practice resting solely
upon the will of the States concerned. However, that
practice itself is considered by the Commission to be
supported by considerations of legal principle and con-
venience. In particular, once the sea-bed and the sub-
soil have become the object of active interest to States
with the view to the exploration and exploitation of
their resources, it is not practicable to treat them as
res nullius, i.e., capable of being acquired by the first
occupier. It is natural that coastal States should resist
any such solution. Moreover, in most cases the effective
exploitation of natural resources must depend on the
existence of installations on the territory of the coastal
State. Neither is it possible to disregard the phenomenon
of geography, whether that phenomenon is described as
propinquity, contiguity, geographical continuity, ap-
purtenance or identity of the submarine areas in ques-
tion with the non-submerged contiguous land. All these
considerations of general utility provide a sufficient
basis for the principle of sovereign rights of the coastal
State as now formulated by the Commission. As already
stated, that principle is in no way incompatible with
the principle of the freedom of the sea.
74. While, for the reasons stated, as well as having
regard to practical considerations, the Commission has
been unable to countenance the idea of the international-
ization of the submarine areas comprised in the concept
of the continental shelf, it has not discarded the pos-
sibility of the creation of an international agency
charged with scientific research and guidance with the
view to promoting, in the general interest, the most
efficient use of submarine areas. It is possible that some
such body may be set up within the framework of an
existing international organization.
(iii) The sovereign rights of the coastal State and the
freedom of the seas and of the airspace above them
75. Some of the principal articles on the continental
shelf as formulated by the Commission are devoted to
the provision of safeguards for the freedom of the seas
in relation to the sovereign rights of the coastal State
over the continental shelf. Thus, articles 3 and 4 lay
interference with such rights, when unavoidably neces- down that the rights of the coastal State over the con-
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tinental shelf b not a ect t e lega status of the super- . The same considerations apply and explain the
jacent waters as high seas or of the airspace above the provisions of article 6, in paragraphs 2 to 5, relating to
superjacent waters. These articles, which are couched in installations necessary for the exploration and exploi-
categorical terms, are self-explanatory. For the articles tation of the continental shelf as well as of safety zones
on the continental shelf are intended as laying down the around such installations and the measures necessary to
regime of the continental shelf only as subject to and protect them. They, too, are subject to the overriding
within the orbit of the paramount principle of the free- prohibition of unjustified interference with freedom of
dom of the seas and of the airspace above them. No fishing and navigation. Although the Commission did
modification of or exceptions from that principle are not consider it essential to specify the size of the safety
admissible unless expressly provided for in the various zones, it believes that, generally speaking, a radius of
articles, five hundred metres is sufficient for the purpose. With
76. The same considerations apply to the sea-bed. Al-
though the sea-bed is subject to the sovereign rights
of the coastal State, for the purpose of the exploration
and exploitation of its natural resources, the principle
of the freedom of the seas and its legal status must be
respected in that sphere, inasmuch as the coastal State
must not prevent the establishment or maintenance of
submarine cables by nationals of other States. That
provision is designed to prevent either arbitrary pro-
hibition or discrimination against foreign nationals. It
is not otherwise intended to impair the right of the
coastal State to take measures reasonably necessary for
the exploration of the continental shelf and the exploi-
tation of its natural resources. At a previous session
the Commission considered whether this provision
ought to be extended to pipelines on the continental
shelf. Such pipelines might necessitate the installation
of pumping stations which might interfere with the
exploitation of the subsoil even more than cables. How-
ever, the question was considered too remote to require
regulation for the time being.
77. While articles 3 and 4 lay down in general terms
the basic rule of the unaltered legal status of the super-
jacent sea and the air above it, article 6 applies that
basic rule to the main manifestations of the freedom
of the seas, namely, the freedom of navigation and
fishing. Paragraph 1 of that article lays down that the
exploration of the continental shelf must not result in
any unjustifiable interference with navigation, fishing
or fish production. It will be noted, however, that what
the article prohibits is not any kind of interference but
only unjustifiable interference. The manner and the sig-
nificance of that qualification were the subject of pro-
longed discussion in the Commission. The progressive
development of international law, which takes place
against the background of established rules, must often
result in the modification of those rules by reference to
new interests or needs. The extent of that modification
must be determined by the relative importance of the
needs and interests involved. To lay down, therefore,
that the exploration and exploitation of the continental
shelf must never result in any interference whatsoever
with navigation and fishing might result in many cases
in rendering somewhat nominal both the sovereign
rights of exploration and exploitation and the very pur-
pose of the articles as adopted. The case is clearly one
of assessment of the relative importance of the inter-
ests involved. Interference, even if substantial, with
navigation and fishing might, in some cases, be justified.
On the other hand, interference even on an insignificant
scale would be unjustified if unrelated to reasonably
conceived requirements of exploration and exploitation
of the continental shelf. While, in the first instance, the
coastal State must be the judge of the reasonableness-
of the justification-of the measures adopted, in case of
dispute the matter must be settled on the basis of article
8 which governs the settlement of all disputes regarding
the interpretation of application of the articles.
regard to notice to be given, in accordance with para-
graph 4 of article 6, of "installations constructed",
the obligation in question refers primarily to installa-
tions already completed. There is in principle no duty
to disclose in advance plans relating to contemplated
construction of installations. However, in cases in which
the actual construction of provisional installations is
likely to interfere with navigation, due means of warn-
ing must be maintained in the same way as in the case
of installations already completed and, as far as pos-
sible, due notice must be given.
79. With regard to the general status of installations
it has been thought useful to lay down expressly, in
paragraph 3 of article 6, that they do not possess the
status of islands and that the coastal State is not entitled
to claim for the installations any territorial waters of
their own or to treat them as relevant for the delimi-
tation of territorial waters. In particular, they cannot
be taken into consideration for the purpose of determin-
ing the base-line. On the other hand, the installations
are under the jurisdiction of the coastal State for the
purpose of maintaining order and of the civil and
criminal competence of its courts.
80. While generally the Commission, by formulating
the test of unjustifiable interference, thought it ad-
visable to eliminate any semblance of rigidity in adapt-
ing the existing principle of the freedom of the sea to
what is an essentially novel situation, it thought it
desirable to rule out expressly any right of interference
with navigation in certain areas of the sea. These areas
are defined in paragraph 5 of article 6 as narrow chan-
nels or recognized sea lanes essential to international
navigation. They are understood to include straits in the
ordinary sense of the word. The importance of these
areas for the purpose of international navigation is such
as to preclude, in conformity with the tests of equiva-
lence and relative importance of the interests involved,
the construction therein of installations or the mainte-
nance of safety zones even if such installations or zones
are necessary for the exploration or exploitation of the
continental shelf.
(iv) Delimitation of the boundaries of the continental
shelf
81. In the matter of the delimitation of the boundaries
of the continental shelf the Commission was in the po-
sition to derive some guidance from proposals made
by the committee of experts on the delimitation of terri-
torial waters.1? In its provisional draft, the Commission,
which at that time was not in possession of requisite
technical and expert information on the matter, merely
proposed that the boundaries of the continental shelf
contiguous to the territories of adjacent States should
be settled by agreement of the parties and that, in the
absence of such agreement, the boundary must be de-
termined by arbitration ex aequo et bono. With regard
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to the boundaries of the continental shelf of States
whose coasts are opposite to each other, the Commis-
sion proposed the median line-subject to reference to
arbitration in cases in which the configuration of the
coast might give rise to difficulties in drawing the
median line.
82.: Having regard to the conclusions of the commit-
tee of experts referred to above, the Commission now
felt. in the position to formulate a general rule, based
on the principle of equidistance, applicable to the boun-
daries of the continental shelf both of adjacent States
and of States whose coasts are opposite to each other.
The rule thus proposed is subject to such modifications
as may be agreed upon by the parties. Moreover, while
in the case of both kinds of boundaries the rule of equi-
distance is the general rule, it is subject to modification
in cases in which another boundary line is justified by
special circumstances. As in the case of the boundaries
of coastal waters, provision must be made for depar-
tures necessitated by any exceptional configuration of
the coast, as well as the presence of islands or of navi-
gable channels. To that extent the rule adopted partakes
of some elasticity. In view of the general arbitration
clause of article 8, referred to below in paragraphs 86
et seq., no special provision was considered necessary
for submitting any resulting disputes to arbitration.
Such arbitration, while expected to take into account
the special circumstances calling for modification of the
major principle of equidistance, is not contemplated as
arbitration ex aequo et bono. That major principle
must constitute the basis of the arbitration, conceived
as settlement on the basis of law, subject to reasonable
modifications necessitated by the special circumstances
of the case.
83. Without prejudice to the element of elasticity im-
plied in article 7, the Commission was of the opinion
that, where the same continental shelf is contiguous to
the territories of two adjacent States, the delimitation
of the continental shelf between them should be car-
ried out in accordance with the same principles as
govern the delimitation of the territorial waters be-
tween the two States in question.
84. It should, however, be noted that certain members
of the Commission considered that it would be prema-
ture to apply for the purposes of delimiting the conti-
nental shelf the principles drawn up by the committee
of experts on the delimitation of territorial waters,
since those principles have not yet been discussed by the
Commission. In their opinion, the proper course would
be to provide that the boundaries of the continental
shelf contiguous to the territories of two or more States
should be determined by agreement between the States
concerned ; and that in the absence of such agreement,
the resultant dispute between them should be settled by
one of the appropriate procedures for the peaceful
settlement of disputes.
85. It is understood that the use of the term "terri-
torial sea", as distinguished from "territorial waters",
in article 7 is provisional and that the question of the
terminology to be used in this and other cases in the
drafts prepared by the Commission will be determined
when the Commission adopts its final draft on the
regime of territorial waters. Reference may also be
made in this connexion to paragraph 108 below regard-
ing the provisional use of the term "base line".
(v) Arbitral settlement of disputes
86. Unlike the preliminary draft, the final draft as
now proposed contains a general arbitration clause
providing that any disputes which may arise between
States concerning the interpretation or application of
the articles should be submitted to arbitration at the
request of any of the parties. The clause thus adopted
covers, in addition to any boundary disputes connected
with article 7, all disputes arising out of the exploration
or the exploitation of the continental shelf.
87. In the view of the Commission, there are com-
pelling reasons which render essential a clause of this
nature. As already stated (see above, paragraph 68
et seq.) the articles on the continental shelf represent
an attempt to reconcile the established principles of
international law governing the regime of the high seas
with the recognition of the rights of the coastal State
over the continental shelf. Any such reconciliation,
based as it must be on the continuous necessity of
assessing the relative importance of the interests in-
volved, must leave room for a measure of elasticity
and discretion. Thus, it must often remain a question
for subjective appreciation, with the consequent possi-
bility of disputes, whether-in the words of paragraph
1 of article 6-the measures taken by the coastal State
for the exploration and exploitation of the continental
shelf constitute "unjustifiable" interference with navi-
gation or fishing; whether, according to paragraph 2 of
that article, the safety zones established by the coastal
State are at a "reasonable" distance around the instal-
lations; whether, in the words of paragraph 5 of that
article, a sea lane is a "recognized" sea lane and
whether it is "essential to international navigation" ; or
whether the coastal State, in preventing the establish-
ment of submarine cables, is, in fact, acting within the
spirit of article 5 which makes such action permissible
only if necessitated by "reasonable" measures for the
exploration and exploitation of the continental shelf.
The new regime of the continental shelf, unless kept
within the confines of legality and of impartial deter-
mination of its operation, may constitute a threat to the
overriding principle of the freedom of the seas and to
peaceful relations between States. For these reasons,
it seems essential that States which are in dispute con-
cerning the exploration or exploitation of the conti-
nental shelf should be under a duty to submit to arbi-
tration any disputes arising in this connexion. It is for
this reason that the Commission, although it does not
propose the adoption of a convention on the continental
shelf, thought it essential to establish the principle of
arbitration.
88. Certain members of the Commission were opposed
to the insertion in the draft of a clause on compulsory
arbitration on the grounds that there was no reason for
imposing on States one only of the various measures
laid down in current international law, and particularly
in Article 33 of the Charter of the United Nations, for
the pacific settlement of international disputes. They
also pointed out that the insertion of such a clause
would make the draft unacceptable to a great many
States. Certain members raised the further objection
that such a clause would give any contracting State the
right to take action on any pretext against the other
contracting States by a unilateral request to interna-
tional tribunals, thus increasing the possibility in pres-
ent circumstances of putting pressure on the weaker
States and in effect curtailing their independence.
89. The provision for arbitration as laid down in ar-
ticle 8 does not exclude any other procedure agreed
upon by the parties as a means for the formal settle-
ment of the dispute. In particular, they may agree, in
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matters of general importance, to refer the dispute to
the International Court of justice.
90. Inasmuch as the articles on the continental shelf
cover generally its exploration and exploitation, arbi-
tration referred to in article 8 must be regarded as ap-
plying to all disputes arising out of the exploration or
exploitation of the continental shelf and affecting the
international relations of the State concerned. This will
cover, for instance, disputes arising in connexion with
the existence of common deposits situated across the
surface boundaries of the submarine areas, a problem
which has arisen in some countries in the relations of
owners of adjoining oil deposits.
C
Action recommended in. respect of the draft
the continental shelf
91. The Commission recommends to the General As-
sembly the adoption by resolution of this part of the
present report and the draft articles on the continental
shelf incorporated therein.
III. FISHERIES
92. The question of fisheries, under the title of "Re-
sources of the sea", has been under consideration by
the Commission as part of the general topic of the
regime of the high seas. Reference is made to the
introductory paragraphs of the present chapter for a
survey of the treatment of the subject by the Commis-
sion.
93. At its third session in 1951, the Commission
adopted provisionally the articles on resources of the
sea." During its fifth session, the Commission recon-
sidered these articles in the light of observations sent
by the following countries : Belgium, Brazil, Chile,
Denmark, Ecuador, France, Iceland, the Netherlands,
Norway, the Philippines, Sweden, Syria, the Union
of South Africa, the United Kingdom of Great Britain
and Northern Ireland, Yugoslavia. The observations
are reproduced in Annex II to the present report. The
Commission discussed the revision of the articles at its
206th to 210th meetings.
94. The Commission adopted, at its 210th meeting, the
following three draft articles covering the basic aspects
of the international regulation of fisheries :
system of regulation, even though their nationals
do not carry on fishing in the area.
Article 3
States shall be under a duty to accept, as binding
upon their nationals, any system of regulation of
fisheries in any area of the high seas which an in-
ternational authority, to be created within the frame-
work of the United Nations, shall prescribe as being
essential for the purpose of protecting the fishing
resources of that area against waste or extermina-
tion. Such international authority shall act at the
request of any interested State.
95. I n adopting these articles the Commission adhered
in substance to the provisional draft of the articles
formulated at its third session in 1951. In their main
aspect both drafts go beyond the existing law and must
he regarded to a large extent as falling within the cate-
gory of progressive development of international law.
The existing position of international law is, in general,
that regulations issued by a State for the conservation
of fisheries in any area of the high seas outside its
territorial waters are binding only upon the nationals
of that State. Secondly, if two or more States agree
upon regulations affecting a particular area, the regu-
lations are binding only upon the nationals of the States
concerned. Thirdly, in treaties concluded by States for
the joint regulation of fisheries for the purpose of their
protection against waste and extermination, the author-
ity created for the purpose has been, as a rule, entrusted
merely with the power to make recommendations, as
distinguished from the power to issue regulations bind-
ing upon the contracting parties and their nationals.
96. It is generally recognized that the existing law on
the subject, including the existing international agree-
ments, provides no adequate protection of marine
fauna against extermination. The resulting position
constitutes, in the first instance, a danger to the food
supply of the world. Also, in so far as it renders the
coastal State or the States directly interested helpless
against wasteful and predatory exploitation of fisheries
by foreign nationals, it is productive of friction and
constitutes an inducement to States to take unilateral
action, which at present is probably illegal, of self-
protection. Such inducement is particularly strong in
the case of the coastal State. Once such measures of
. Article 1 self-protection, in disregard of the law as it stands at
A State whose nationals are engaged in fishing present, have been resorted to, there is a tendency to
in any area of the high seas where the nationals of aggravate the position by measures aiming at or result-
other States are not thus engaged, may regulate ing in the total exclusion of foreign nationals.
and control fishing activities in such areas for the 97. The articles as now adopted by the Commission
purpose of protecting fisheries against waste or are intended to provide the basis for a solution of the
extermination. If the nationals of two or more States difficulties inherent in the existing situation. Article 3
are engaged in fishing in any area of the high seas, imposes upon States the "duty to accept, as binding upon
the States concerned shall prescribe the necessary their nationals, any system of regulation of fisheries in
measures by agreement. If, subsequent to the adop- any area of the high seas which an international author-
tion of such measures, nationals of other States ity, to be created within the framework of the United
engage in fishing in the area and those States do Nations, shall prescribe as being essential for the pur-
not accept the measures adopted, the question shall, pose of protecting the fishing resources of that area
at the request of one of the interested parties, be against waste or extermination". Moreover, it is pro-
referred to the international body envisaged in ar- vided there that "such international authority shall act
ticle 3. at the request of any interested State", i.e. whether a
Article 2 coastal or any other State. Certain members of the
Commission. were opposed to the adoption of the text
In any area situated within one hundred miles of article 3, on the ground that there was no real need
from the territorial sea, the coastal State or States for the creation of an international authority, since
are entitled to take part on an equal footing in any fisheries could be regulated, as in the past, by means
11 See Official Records of the General Assembly, Sixth Ses- of agreements between States. They contended that the
sion, Supplement No. 9, document A/1858, page 19. proposal to give an international authority power to
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issue regulations binding on the nationals of States ciple of the freedom of the seas to encourage or permit
was in conflict with the basic principles of international action which amounts to an abuse of a right and which
law. is apt to destroy the natural resources whose preserva-
98. The system proposed by the Commission protects, tion and common use have been one of the main objects
in the first instance, the interest of the coastal State of the doctrine of the freedom of the sea. This is so
which is often most directly concerned in the preserva- although the Commission is of the opinion that the
tion of the marine resources in the areas of the sea articles adopted fall generally within the category of
contiguous to its coast. Obviously, if only the nationals development of international law.
of that State are engaged in fishing in these areas, it can 101. Reference may be made in this connexion to
fully achieve the desired object by legislating in respect article 2, which lays down that, in any area situated
of its nationals and enforcing the legislation thus en- within one hundred miles from the territorial sea, the
acted. If nationals of other States are engaged in fish- coastal State or States are entitled to take part on an
ing in a given area-whether coastal or otherwise-it is equal footing in any system of regulation, even though
clear that the concurrence of those States is essential their nationals do not carry on fishing in the area. This
for the effective adoption and enforcement of the regu- provision is considered to safeguard sufficiently the
lations in question. Article 1 provides therefore that in position of the coastal State. Such protection of its
such cases "the States concerned shall prescribe the interests is equitable and necessary even if, for the
necessary measures by agreement". Article 3 is intended time being, its nationals do not engage in fishing in the
to provide effectively for the contingency of the in- area. On the other hand, the right to participate, on a
terested States being unable to reach agreement. In such footing of equality, in any system of regulation agreed
cases, the regulations are to be issued, with binding ef- upon by other States does not imply a right to prevent
fect, by the international authority envisaged in that or hinder its operation. The same applies to any system
article. Similarly, if subsequent to the adoption of of regulation which may be decided upon by the inter-
measures of protection by the agreement of the inter- national authority in conformity with article 3. In view
ested States, nationals of other States engage in fishing of the wide powers conferred upon the latter, the
in the area in question and if their States are unwilling Commission considered it unnecessary to entertain in
to accept or respect the regulations thus issued, the in- detail the proposal, put forward at its third session
ternational authority provided for in article 3 is em- and advanced once more at its present session, to en-
powered to declare the regulations to be binding upon trust the coastal State itself with the right to issue regu-
the; States in question and upon their nationals. lations of a non-discriminatory character binding upon
99. As stated, the system thus formulated by the foreign nationals in areas contiguous to its coast.
Commission does not differ substantially from that 102. With respect to the action which may appropri-
provisionally adopted by the Commission at its third ately be taken by the General Assembly in the matter
session. Thus, it was laid down, in article 2, that a per- of the part of the present report incorporating the final
maient international body competent to conduct invest!- draft of articles on fisheries, the Commission recom-
gations of the world's fisheries and the methods em- mends : (a) that the General Assembly should by reso-
ployed in exploiting them "should also be empowered to lution adopt that part of the report and the draft
make regulations for conservatory measures to be articles ; and (b) that it should enter into consultation
applied by the States whose nationals are engaged in with the United Nations Food and Agriculture Organi-
fishing in any particular area where the States con- zation with a view to the preparation of a draft
cerned are unable to agree among themselves". It is convention incorporating the principles adopted by the
significant of the present state of opinion and of the Commission.
widely felt need for the removal of what is considered 103. The Commission believes that the general im-
by ;many to be a condition approaching anarchy that, in portance and the recognized urgency of the subject
the. replies sent by governments, no opposition was matter of the articles in question warrant their endorse-
voiced against the proposal then advanced by the ment by a formal act of approval on the part of the
Commission. General Assembly. Considerable time must elapse be-
100. The Commission, in adopting the articles, was fore a convention on the lines here proposed can be
influenced by the view that the prohibition of abuse of adopted and widely ratified. In the meantime, it seems
rights is supported by judicial and other authority and advisable that the General Assembly should lend its
is germane to the situation covered by the articles. A authority to the principles underlying the articles. In
State which arbitrarily and without good reason, in particular, endorsement should be given to the view
rigid reliance upon the principle of the freedom of the that, where a number of interested States have agreed.
seas, declines to play its part in measures reasonably on a system of protection of fisheries, any regulations
necessary for the preservation of valuable, or often thus agreed upon should not, without good reason, be
essential, resources from waste and exploitation, abuses rendered nugatory by the action or inaction of a single
a right conferred upon it by international law. The State. The problem underlying the articles is one of
prohibition of abuse of rights, in so far as it constitutes general interest and the Commission believes that an
a general principle of law recognized by civilized States, authoritative statement of the legal position on the
provides to a considerable extent a satisfactory legal subject, both de lege lata and de lege ferenda, by the
basis for the general rule as formulated in article 3. General Assembly is indicated as a basis of any future
To that extent it may be held that that article is not regulations which may be adopted.
altogether in the nature of a drastic departure from 104. While the articles adopted by the Commission
the principles of international law. In fact, the Com- contain the general principles for the protection of
mission deems it desirable that, pending the general fisheries, it is clear that only a detailed convention or
acceptance of the system proposed in article 3, enlight- conventions can translate these principles into a system
ened States should consider themselves bound, even of working rules. It is probable that that object may
if by way of a mere imperfect legal obligation, to act be achieved on a regional basis rather than by way of
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past for the protection of fisheries have been, as a rule, Hague Codification Conference of 1930 proposed that
on a regional basis. The International Convention for
the North West Atlantic Fisheries of 6 February 1949,
which establishes an International Commission for the
North Atlantic Fisheries assisted by panels for sub-
areas and national advisory committees, and the pro-
posed International Convention for the High Sea Fish-
eries of the North Pacific Ocean, approved in draft by
the Tripartite Fisheries Conference at Tokyo on 14
December 1951, provide recent instructive examples of
such regulations. Account would also have to be taken
of the existence and experience of regional bodies such
as the Indo-Pacific Fisheries Council, the General
Fisheries Council for the Mediterranean and the Latin-
American Fisheries Council. The matter is of a techni-
cal character ; as such it is outside the competence of
the Commission. A specialized body, such as the United
Nations Food and Agriculture Organization would
seem to be most suitable for the purpose. Accord-
ingly, the Commission recommends that, concurrently
with its approval of the articles on fisheries, the
General Assembly should enter into consultation with
FAO with a view to investigating the matter and pre-
paring drafts of a convention or conventions on the
subiect in conformity with the general principles em-
bodied in the articles.
105. As part of the work on the regime of the high
seas the Commission adopted, at its 210th meeting, the
following single article on contiguous zone :
On the high seas adjacent to its territorial sea,
the coastal State may exercise the control neces-
sary to prevent and punish the infringement,
within its territory or territorial sea, of its cus-
toms, immigration, fiscal or sanitary regulations.
Such control may not be exercised at a distance
beyond twelve miles from the base line from which
the width of the territorial sea is measured.
106. The article thus adopted is identical, but for the
words reproduced in italics, with that formulated by
the Commission at its third session.12 Apart from some
qualifications and reservations, the principle underlying
that article has encountered no opposition on the part
of the governments which have since made observations
on the subject (see Annex II to the present report).
The Commission believes that principle to be in ac-
cordance with a widely adopted practice. International
law does not forbid States to exercise a measure of pro-
tective, preventive, or punitive jurisdiction for certain
purposes over a belt of water contiguous to its terri-
torial sea. States have shown no disposition to chal-
lenge the exercise by other States of a limited jurisdic-
tion of that nature. Certain members of the Commission
were, however, opposed to the inclusion of this article,
on the ground that it had no direct connexion with the
regime of the high seas and, moreover, that several
governments in their observations had also put forward
the view that the article in question should be examined
in connexion with the discussion of territorial waters.
107. There has been no general agreement as to the
extent of the contiguous zone for the purposes as
defined above. The Preparatory Committee of The
12 See Official Records of the General Assembly, Sixth Ses-
sion, Supplement No. 9, document A/1858, page 20.
the breadth of the contiguous zone should be fixed at
twelve nautical miles measured from the coast. While it
is possible that in some cases that limit may be insuf-
ficient, having regard to technical developments in the
speed of vessels and otherwise, the Commission be-
lieves that, on the whole, that limit approximates most
closely to general practice as acquiesced in by States.
108. It must be noted that, in the article as now for-
mulated, the contiguous zone of twelve miles is de-
scribed as measured from the base line from which the
width of the territorial sea is measured. In the article
as proposed in 1951, the Commission referred to twelve
miles as measured "from the coast". This change of
formulation is not intended as an expression of view
as to the nature of the base line forming the inner limit
of the territorial sea. However, as in the case of the
territorial sea, it is convenient to refer to the base line
as being the more precise indication.
109. In adopting the limit of twelve miles for the
exercise of the protective rights of States within the
contiguous zone, the Commission does not intend to
prejudice, in any direction, the results of its examina-
tion of the question of the territorial sea and of its
limits.
110. Certain members of the Commission opposed the
inclusion of the article on the contiguous zone, on the
ground that it prejudged the question of the outer
limit of territorial waters. They pointed out that by
taking as the base line the inner limit of the territorial
waters, the article tended to restrict the width of these
waters-a point on which the Commission had not yet
taken any decision.
111. It is understood that the term "customs regula-
tions" as used in the article refers not only to regula-
tions concerning import and export duties but also
other regulations concerning the exportation and im-
portation of goods. In addition, the Commission thought
it necessary to amplify the formulation previously
adopted by referring expressly to immigration-a term
which is also intended to include emigration.
112. The rights of the coastal State within the con-
tiguous zone do not include rights in connexion with
security or fishing rights. With regard to the latter the
Preparatory Committee of the Codification Conference
of 1930 found that the replies of governments disclosed
no sufficient measure of agreement-on the subject. The
Commission considers that in that respect there has
been no change in the position. The question may be-
come less urgent and more amenable to a solution if tfie
proposals of the Commission relating to fisheries and
contained in paragraphs 94 et seq., of the present re-
port are adopted by States.
113. The exercise of the rights of the coastal State,
as here formulated, within the contiguous zone does not
affect the legal status of the sea outside the territorial
sea or of the airspace above the contiguous zone. Air
traffic may necessitate the establishment of an air zonee,
over which the coastal State may exercise control..
However, this question is outside the subject of the
regime of the high seas.
114. As the Commission has not yet adopted draft
articles on the territorial sea, it recommends the General
Assembly to take no action with regard to the article
on the contiguous zone, since the present report is
already published (article 23, paragraph 1(a), of the
Commission's Statute).
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Chapter IV
1. INTRODUCTORY
115. At its first session in 1949, the International Law
Commission selected "nationality including stateless-
ness" as a topic for codification without, however, in-
cluding it in the list of topics to which it gave priority.13
116. During its third session in 1951, the Commission
was notified of resolution 319 B III (XI) adopted by the
Economic and Social Council on 11 August 1950, in
which the Council requested the Commission to
. prepare at the earliest possible date the necessary
draft international convention or conventions for the
elimination of statelessness". In response to this request,
the Commission, at the same session, decided to initiate
work on the topic of nationality including statelessness,
and appointed Mr. Manley O. Hudson special rap-
porteur on the subject.14
117. Mr. Hudson,. at the fourth session of the Com-
mission in 1952, submitted a "Report on Nationality in-
cluding Statelessness" (A/CN.4/50). The report com-
prised a working paper on the subject of statelessness.
In the course of its discussion of the report, the Com-
mission decided to request the special rapporteur to
prepare, for considbration at the fifth session, a draft
convention on the elimination of future statelessness
and one or more draft conventions on the reduction of
future statelessness. The Commission also gave general
directions to guide the work of the special rapporteur.15
118. At the end of the fourth session, the Commission
appointed Mr. Roberto Cordova special rapporteur on
the topic of nationality including statelessness to replace
Mr. Hudson who, for reasons of health, felt unable to
continue as special rapporteur. The Commission also
appointed Mr. Ivan Kerno as an expert to assist the
special rapporteur ; in his report, mentioned below, the
special rapporteur expressed warm appreciation of
theassistance given him by Mr. Kerno.
119. In accordance with the decision taken by the
Commission at its fourth session the special rapporteur
presented a report (A/CN.4/64) containing articles,
accompanied by detailed comment, of two draft con-
ventions: one on the elimination of future statelessness
and another on the reduction of future statelessness.
The Commission had also before it the report, referred
to above in paragraph 117, of Mr. Manley O. Hudson
presented in 1952, a memorandum prepared by Mr.
Kerno on national legislation concerning grounds for
deprivation of nationality (A/CN.4/66) and two re-
13 See the report of the Commission covering the work of its
first session, Official Records of the General Assembly, Fourth
Session, Supplement No. 10, document A/925, paragraphs 16
and 20.
14 See the report of the Commission covering the work of its
third session, Official Records of the General Assembly, Sixth
Session, Supplement No. 9, document A/1858, paragraph 85.
1rs See the report of the Commission covering the work of its
fourth session, Official Records of the General Assembly, Sev-
enth Session, Supplement No. 9, document A/2163, paragraphs
29 and 31.
ports of the Secretary-General, namely, "A Study of
Statelessness" (E/1112 and Add.1) and "The Prob-
lem of Statelessness" (A/CN.4/56 and Add.1).
120. The Commission decided to discuss and to con-
sider the adoption of both drafts submitted by the
special rapporteur. It discussed them at the 211th to
225th and 231st to 234th meetings. On 7 August 1953
at its 234th meeting, the Commission adopted provi-
sional drafts of both conventions and decided to request
the Secretary-General to issue them as a Commission
document in accordance with article 16 (g) and article
21, paragraph 1, of the Statute of the Commission."'
The Commission also decided, in accordance with ar-
ticle 16 (h) and article 21, paragraph 2 of the Statute,
to invite governments to submit their comments on the
draft conventions as formulated by it. The relevant
articles of the two draft conventions provisionally
adopted by the Commission are reproduced below to-
gether with the comment accompanying the preamble
and the various articles. For the sake of convenience
and comparison the two draft conventions are also re-
produced, in parallel columns, at the end of the present
chapter in paragraph 162.
121. The Commission deems it desirable, in order to
clarify the situation, to indicate at this juncture in g~n-
eral terms the relation between the two drafts. The
Commission adopted provisionally both draft conven-
tions for consideration by governments. While some
members of the Commission were of the opinion that
only eventual acceptance of the draft Convention on the
Elimination of Future Statelessness can fully solve the
problem of statelessness in the future, others were of
the view that the Draft Convention on the Reduction of
Future Statelessness constitutes at present the prac-
ticable solution of the problem. However, the Commis-
sion is convinced of the imperative necessity of elimi-
nating or at least drastically reducing future stateless-
ness by international agreement, and it is of the opinion
that one of the two draft conventions ought eventually
to become part of international law. Accordingly, in
submitting the two draft conventions to governments
for their comment, the Commission does not consider
it necessary to recommend to them to adopt as the basis
of their comment exclusively the one or the other of
the two conventions. In view of the urgency of the
problem and having regard to its desire to study all
the aspects of the question, the Commission recom-
mends that governments should give consideration to
16 Mr. Kozhevnikov voted against the draft conventions on
the elimination and reduction of future statelessness as well
as against the chapter of the report accompanying these con-
ventions for the reasons of principle stated repeatedly during
the discussion on the conventions. Mr. Zourek declared that he
had voted against the two draft conventions and the com-
mentaries on them for reasons which he had had occasion to
explain during the discussion and, in particular, at the Com-
mission's 228th meeting. Mr. Yepes voted against article 1 of
the draft convention on the elimination of future statelessness
for reasons stated in the summary records.
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and comment o both rat conventions. in ue course, RAFT ONVENTION ON THE FDUCTION of FUTURE
and after receiving the comments of governments, the STATELESSNESS
Commission will consider whether and in what form h Preamble
ld
b
h
l A
G
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final draft conventions and what course of action it
should recommend.
122. The Commission decided, in view of the consid-
erations adduced below in paragraph 127, to ask the Sec-
retary-General to transmit to the Economic and Social
Council the draft conventions as embodied in the
present report, as well as the supporting documentation
referred to in paragraph 119.
123. In adopting the titles "Draft Convention on the
Elimination of Future Statelessness" and "Draft Con-
vention on the Reduction of Future Statelessness",
the Commission desired to draw attention to the fact
that the draft conventions are not intended to have
retroactive effect and that they are not concerned with
the problem of the elimination or reduction of existing
statelessness. During the session, the special rappor-
teur prepared an interim report and drafts of conven-
tions bearing on this latter subject (A/CN.4/75). The
Commission asked the special rapporteur to devote
further study to the matter and to prepare a report for
the next session.
124. It is considered desirable, on grounds elaborated
below and for the sake of convenience in presenting the
comment, to draw attention to the fact that but for
the last sentence of the preamble and articles 1 and 7
the two draft conventions are identical. For this reason
it is convenient to comment together on the respective
articles and preambles of both conventions.
125. The preambles of the two draft conventions read
as follows :
DRAFT CONVENTION ON THE ELIMINATION OF FUTURE
STATELESSNESS
Preamble
Whereas the Universal Declaration of Human
Rights proclaims that everyone has the right to a
nationality,
Whereas the Economic and Social Council has
recognized that the problem of stateless persons
demands the taking of joint and separate action
by Member nations in co-operation with the United
Nations to ensure that everyone shall have an ef-
fective right to a nationality,
Whereas statelessness often results in suffering
and hardship shocking to conscience and offensive
to the dignity of man,
Whereas statelessness is frequently productive
of friction between States,
Whereas statelessness is inconsistent with the
existing principle which postulates nationality as
a condition of the enjoyment by the individual of
certain rights recognized by international law,
Whereas the practice of many States has in-
creasingly tended to the progressive elimination
of statelessness,
Whereas it is imperative, by international agree-
ment, to eliminate the evils of statelessness,
Identical with the preamble of the draft Con-
vention on the Elimination of Future Stateless-
ness, except for the last considerandum which is
as follows:
"Whereas it is desirable to reduce statelessness,
by international agreement, so far as its total elim-
ination is not possible".
126. The preamble, in invoking the fact that the Uni-
versal Declaration of Human Rights proclaims that
"everyone has the right to a nationality", is not in-
tended as suggesting that legal obligations devolve upon
Members of the United Nations from that source. How-
ever, as pointed out below, in formulating the present
drafts, the Commission is fulfilling to a large extent the
function of developing international law. It is proper
that a convention of this nature should be inspired by
a Declaration which was conceived as an expression of
compelling moral principle and as a realizable standard
of action for States in the sphere of human rights and
fundamental freedoms. The Commission is of the opin-
ion that in the matter of the right of nationality the
principles of the Declaration lend themselves, perhaps
with less difficulty than in other spheres, to transforma-
tion into legal rules capable of general application.
127. It is particularly for that reason that it has been
thought fit to cite, in the second sentence of the pre-
amble, that part of the resolution adopted on 2 March
1948 (resolution 116 D (VI)) by the Economic and
Social Council which lays down that the problem of
statelessness demands "the taking of joint and sepa-
rate action by Member nations in-co-operation with the
United Nations to ensure that everyone shall have an
effective right to a nationality". In referring to the
necessity of ensuring the effective right to a nation-
ality, as distinguished from a moral right thereto, the
Economic and Social Council envisaged the elimination
of legal causes of statelessness through the adoption of
binding legal obligations. It was for that reason that the
Council, in its subsequent resolution of 8 August 1949
(resolution 248 B (IX)) decided to appoint an ad hoc
Committee composed of representatives of govern-
ments and charged, inter alia, with considering "means
of eliminating the problem of statelessness, including
the desirability of requesting the International Law
Commission to prepare a study and make recommenda-
tions on this subject". In a further resolution, part of
which has been referred to above in paragraph 116, of
11 August 1950 (resolution 319 B III (XI)) the
Council, considering "that it is necessary both to reduce
the number of stateless persons and to eliminate the
causes of statelessness", urged that "the International
Law Commission prepare at the earliest possible date
the necessary draft international convention or con-
ventions for the elimination of statelessness". While the
elimination or reduction of statelessness is dictated by
wider considerations of an imperative nature, it is
proper, in the view of the Commission, that the con-
ventions should recall the considered view of one of
the principal organs of the United Nations which bears
a special responsibility for questions such as those cov-
ered by the two draft conventions now formulated by
the Commission.
The Contracting Parties 128. The Commission does not consider it necessary
Hereby agree as follows: to elaborate the reasons underlying the statement of the
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preamble that "statelessness often results in suffering the full length of altering drastically their legislation
and hardship shocking to the conscience and offensive in order to eliminate statelessness, others may not find
to the dignity of man". That fact is generally, if not it practicable or desirable to go so far. This is the rea-
universally, acknowledged. The Commission realizes son for the difference in the phrasing of the two pre-
that any exaggeration of the evils of statelessness ought ambles. Both conventions recognize that the progress
to be avoided. In many countries, stateless persons which they consider to be imperative or desirable must
enjoy a high degree of security and protection of funda- be achieved through international agreement. Such
mental human freedom. However, human dignity and agreement would limit the freedom of action in a sphere
basic human rights cannot be treated as a matter of which has been hitherto within the exclusive domestic
degree and numbers. Even if the evils of statelessness jurisdiction of States. However, an agreement of this
were to affect only a limited number of persons, it kind, freely concluded by States in the full exercise
would be the task of the international community to of their sovereign rights, would not be incompatible
circumvent such evils in so far as that is possible with their sovereignty. On the other hand, the preamble
through the acceptance of binding international obliga- stresses the point that, although in theory an ameliora-
tions on the part of States to possess or enact laws tion of the existing position can be brought about by
which eliminate or considerably reduce statelessness in concurrent national legislation, it is only through inter-
the future. national agreement that such concurrent national legis-
129. Similar considerations apply to the acknowledged lation can be both secured and maintained.
fact that statelessness is "frequently productive of fric- III. ELIMINATION AND REDUCTION OF STATELESSNESS
tion between States". It is sufficient to refer in this
sulting AS THE RESULT OF BIRTH
connexion to the situation created by statelessness re-
from denationalization of nationals resident (i) Birth in the territory of the Contracting Parties
abroad and the ensuing inability of the States where 133. Articles 1 to 4 of both draft conventions are con-
such persons reside to deport them to their country of cerned with the elimination or reduction of stateless-
origin. ness in connexion with birth. While articles 2 to 4 are
130. International law as at present constituted is common to both conventions, article 1 exhibits a differ-
based on the principle that nationality is the link be- ence which, although probably of limited importance
tween the individual and international law. That situ- in practice, is otherwise of deep significance for the
ation may undergo a change in proportion as interna- States concerned. Article 1 of the draft Convention
tional law recognizes, as a matter of a legal obligation on the Elimination of Future Statelessness is as follows :
binding upon governments, rights of the individual
independent of the law of the State. So long as that Article 1
change has not been accomplished, statelessness renders 1. A child who would otherwise be stateless shall
impossible in many cases the operation of a substantial acquire at birth the nationality of the Party in
portion of international law. To that extent stateless- whose territory it is born.
ness, although not prohibited by international law, is
inconsistent with one of the basic principles of its exist- Article 1 of the draft Convention on the Reduction
ing structure. To that extent also the efforts to eliminate of Future Statelessness is as follows :
statelessness, while changing and developing interna- Article 1
tional law in one direction, constitute also, in another
direction, a consolidation of one of its existing basic 1. A child who would otherwise be stateless shall
principles in the sense that they aim at removing what acquire at birth the nationality of the Party in
is a clear contradiction resulting from the admissibility whose territory it is born.
of statelessness. The preamble gives expression to that 2. The national law of the Party may make preser-
aspect of the problem. vation of such nationality dependent on the person
131. This is also the position with regard to the refer- being normally resident in its territory until the age
ence in the preamble to the "practice of many States" of eighteen, and provide that to retain nationality
which "has increasingly tended to the progressive elim he must comply with such other conditions as are
ination of statelessness". A study of recent legislation required from all persons born in the Party's ter-
of many States, as well as the observations of various ritory.
governments reproduced by the Secretary-General in 3. If, in consequence of the operation of such
his report "The Problem of Statelessness" (A/CN.4/56 conditions as are envisaged in paragraph 2, a per-
and Add.1), show an articulate tendency to frame and son on attaining the age of eighteen does not retain
to amend national legislation in such a manner as to the nationality of the State of birth, he shall acquire
either practically eliminate statelessness or reduce it to the nationality of one of his parents. The nationality
a substantial degree. To that extent the conventions of the father shall prevail over that of the mother.
drafted by the Commission may be regarded as an 134. The effect of article 1 of the draft Convention
attempt to give expression to a deliberate tendency in on the Elimination of Future Statelessness is, so far
the practice of States desirous to eliminate or reduce as the contracting parties are concerned, to eliminate
statelessness. statelessness ensuing from birth. While no change in
132. The preambles to the two draft conventions state the legislation of countries whose law is based on the
either (as in the first convention) that it is imperative, principle of jus soli is required to give effect to that
by international agreement, to eliminate the evils of article, it is clear that a change in this respect would be
statelessness, or (as in the second convention) that it required in countries based on the principle of jus
is desirable to reduce statelessness by international sanguinis.
agreement, so far as its total elimination is not possible. 135. It must be envisaged that States whose law on
As stated above in paragraph 121, the possibility must the subject is based on the latter principle and which
be envisaged that while some States may wish to o to attach importance to a link more substantial than what
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may be viewed as the accidental fact of birth within his nationality by virtue ot the operation of article 7
their territory, may find it difficult to accept in its en- of the draft Convention on the Reduction of Future
tirety the simple rule adopted in the draft Convention Statelessness even if at the age of eighteen he is nor-
on the Elimination of Future Statelessness. For that mally resident in the territory of the State of birth.
reason, article 1 of the draft Convention on the Reduc- 138. Moreover, in those exceptional cases in which
tion of Future Statelessness provides that retention of there has been a failure to retain nationality on account
the nationality of the State of birth shall be conditional of the operation of paragraph 2 of article 1, paragraph
on the person in question having his or her normal 3 of the same article provides that the person in ques-
residence in the territory of the State of birth until tion shall acquire the nationality of one of the parents-
the age of eighteen. That article, it will be noted, does the nationality of the father prevailing over that of the
not leave such persons stateless until the age of eighteen, mother. Thus the scope of the operation of paragraph 2
when they would qualify for the nationality of the State of article 1 of the draft Convention on the Reduction
concerned provided they are normally resident within of Future Statelessness in so far as it may result in
its territory. On the contrary, such persons acquire statelessness is kept within rigidly narrow limits. It
immediately on birth the nationality of that State. may be said, therefore, that while article 1 of that con-
They may lose it, and in some cases become stateless, vention safeguards the basic considerations of the law
if they abandon their normal residence in that State of countries not adhering to the territorial principle as
before they reach the age of eighteen. However, loss of a criterion of nationality, it approximates in its effects
nationality in such cases would only in exceptional cases to the corresponding article of the draft Convention on
result in statelessness, namely, in cases in which such the Elimination of Future Statelessness.
persons have not acquired another nationality either by
virtue of descent or in consequence of naturalization
in the country in which they are normally resident. It
will thus be seen that, so far as the elimination of state-
lessness on account of birth is concerned, the practical
effect of both conventions is not dissimilar. At the same
time, article 1 of the draft Convention on the Reduction
of Future Statelessness fully safeguards the position of
those countries which are not disposed to grant irrev-
ocably their nationality by reference to the mere fact
of birth.
136. Moreover, it is of importance to bear in mind
that, in article 1 of both conventions, States whose law
is based on the principle of descent in no way commit
themselves to a complete abandonment of that basic
principle. They retain it as a normal principle of their
law not only with regard to their nationals, wherever
born, but also with regard to non-nationals born in their
territory. Such non-nationals acquire the nationality of
the State of birth only if otherwise they become state-
less, namely, if they do not acquire a nationality by
virtue of descent. As most countries, including those
whose law is also based on the territorial principle, rec-
ognize acquisition of nationality by descent, the oper-
ation of article 1 of both conventions would, for most
practical purposes, be limited to persons born of state-
less persons. The Commission deems it of importance
to emphasize that aspect of the articles, inasmuch as
it brings to light what the Commission believes to be
a fact, namely, that in this as in many other cases the
abolition or reduction of statelessness can be achieved
without any substantial sacrifice of the basic principles
of the law of nationality of any country.
137. Reference may be made here to the clause of the
second paragraph of article 1 of the draft Convention
on the Reduction of Future Statelessness, which lays
down that the national law may provide, in addition to
the requirement of normal residence, that to retain na-
tionality a person must comply with such other con-
ditions as are required from all other persons born in
the territory of the State in question. The object and
effect of that clause are strictly limited. Its purpose is
to prevent a situation in which a person acquiring na-
tionality by virtue of paragraph 1 of article 1 might
be given a privileged position in relation to other
nationals. Thus, a person covered by paragraph 2 of
article 1 who, before attaining the age of eighteen,
enters the military service of a foreign State, may lose
Approved
(ii) Foundlings
139. Article 2 of both conventions provides as follows :
Article 2
For the purpose of article 1, a foundling, so long
as its place of birth is unknown, shall be presumed
to have been born in the territory of the Party in
which it is found.
It will be noted that the presumption set up in this
article is a rebuttable one; it obtains only for so long
as the place of birth of the foundling is unknown. It
was observed in the course of the discussion on the
subject that the subsequent discovery of the place of
birth may in some cases entail statelessness, for in-
stance, when the State within the territory of which
the person in question is subsequently found actually to
have been born does not recognize the principle of jus
,soli and, at the same time, that person does not acquire
any nationality by descent. However, that contingency
will not arise if the State in question is a party to the
convention. The residuum of cases leaving room for
statelessness is accordingly so small as to render otiose
any further provision on the subject even in the draft
Convention on the Elimination of Future Statelessness.
It is clearly not essential in the draft Convention on
the Reduction of Future Statelessness.
(iii) Birth on ships and aircraft
140. Article 3 of both conventions provides as follows :
Article 3
For the purpose of article 1, birth on a vessel
shall be deemed to have taken place within the
territory of the State whose flag the vessel flies.
Birth on an aircraft shall be considered to have
taken place within the territory of the State where
the aircraft is registered.
After considerable discussion, the Commission decided
that the preferable solution in this case was to adopt
the simple test of the flag of the vessel and of the reg-
istration of the aircraft. It came to the conclusion that
the relative infrequency of birth on vessels or aircraft
did not warrant an attempt to distinguish between
private and public vessels and aircraft; or, in case of
ships, between birth in territorial waters and on the high
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seas ; or, in case of aircraft, between birth over terri-
tory, territorial waters and high seas. Any attempt at
such distinction would necessitate, in the case of vessels,
a preference for one of the various systems followed
by States in this matter. Thus, while some States con-
sider birth on board a vessel to provide the decisive
test regardless of whether the vessel is, at the time of
birth, on the high seas or in territorial waters of a for-
eign State, others follow a different rule. In the case
of aircraft, an attempt to determine whether birth took
place over territorial waters or on the high seas might
lead to serious difficulties. This is an additional reason
why the Commission considers that a simple test of flag
or registration meets the case.
(iv) Birth outside the territory of the
contracting parties
141. As a general rule, both conventions can provide
against statelessness on account of birth only in respect
of persons born in the territory of a contracting party.
However, it may be possible for States to agree to con-
sider as their nationals persons born abroad who would
be otherwise stateless but who are born of parents one
of whom is a national of a contracting party. This pro-
vision would cover, in particular, cases of persons oth-
erwise stateless born abroad of parents who are na-
tionals of a contracting party which does not recognize
the. principle of descent. Accordingly, article 4 of both
conventions provides as follows:
Article 4
Whenever article 1 does not apply on account of
a child having been born in the territory of a State
which is not a Party to this convention, it shall
acquire the nationality of the Party of which one of
its parents is a national. The nationality of the father
shall prevail over that of the mother.
This article may also provide a solution, so far as the
contracting parties are concerned, for the very excep-
tional cases of persons, otherwise stateless, born in
no-man's-land or in territories the sovereignty of which
is undetermined or divided as in the case of condominia.
IV. ELIMINATION AND REDUCTION OF STATELESSNESS
ON ACCOUNT OF CHANGE OF STATUS
from termination of marriage, legitimation and rec-
ognition. Moreover, the enumeration in that article of
the instances of changes of status is not intended to
be exhaustive. The article is intended to cover all
changes of status.
144. In the matter of changes of status in connexion
with marriage, the Commission, which was in receipt of
a communication on that subject from the Chairman of
the Commission on the Status of Women, in no way
intends to express approval or disapproval of the leg-
islation of those countries which make the nationality
of the wife dependent upon that of the husband. Nev-
ertheless, so long as such legislation exists and is a
potential cause of statelessness, the question of loss of
nationality on account of marriage or termination of
marriage must find a place in the conventions drafted
by the Commission. The Commission has refrained
from expressing any opinion on the question of the
retention of their original nationality by women who
marry nationals of a foreign country.
V. STATELESSNESS ARISING OUT OF VOLUNTARY ACT
OR OMISSION
145. Except with regard to marriage, article 5 is con-
cerned mainly with loss of nationality resulting from
changes of status over which the persons in question
have no control. Article 6 covers possible causes of
statelessness ensuing from what are essentially volun-
tary acts or omissions. Article 6 of both conventions
provides as follows :
Article 6
1. Renunciation shall not result in loss of nation-
ality unless the person renouncing it has or acquires
another nationality.
2. Persons who seek naturalization in a foreign
country or who obtain an expatriation permit for
that purpose shall not lose their nationality unless
they acquire the nationality of that foreign coun-
try.
3. Persons shall not lose their nationality, so as to
become stateless, on the ground of departure, stay
abroad, failure to register or on any other similar
ground.
146. While paragraphs 1 and 2 of article 6 relating
142. Article 5 of both conventions provides as follows : to renunciation, naturalization and expatriation per-
mits follow, though in a manner more pronounced and
Article S admitting of no exceptions, some of the articles of
1. If the law of a Party entails loss of nationality The Hague Convention of 1930 referred to above, par-
as a consequence of any change in the personal agraph 3 finds no parallel in that convention. One or
status of a person such as marriage, termination of more of the causes of loss of nationality covered in that
marriage, legitimation, recognition, or adoption, paragraph occur in the legislation of most States. They
such loss shall be conditional upon acquisition of refer to nationals both natural born and naturalized.
another nationality. Thus, the acquisition or retention of nationality by
2. The change or loss of the nationality of a spouse virtue of the principle of descent on the part of persons
or of a parent shall not entail the loss of national- resident abroad is often subject to the condition of
ity by the other spouse or by the children unless registration with a consulate or some other authority.
they have or acquire another nationality. In the legislation of some countries, prolonged stay
abroad, either in itself or if not accompanied by regis-
143. In general, the above article follows the corre- tration, is a cause of loss of nationality. This applies
spending provisions of The Hague Convention of 1930 in particular to naturalized persons, especially with
on Certain Questions relating to the Conflict of Na- regard to stay in the country of origin. Paragraph 3
tionality Laws. However, the article as formulated aims does not altogether exclude loss of nationality in such
at a complete exclusion of change of status as a po- cases. It does so, as in other articles of the draft con-
tential cause of statelessness. Unlike The Hague Con- ventions (with the exception of article 8), only if such
vention, it refers also to changes of status resulting loss results in statelessness.
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147. However, even if thus qualified, this particular
provision entails an important departure from the leg-
i8lation of many countries. Such departure is essen-
tial for the elimination of that particular cause of state-
lessness. On the other hand, the operation of that pro-
vision does not prevent disadvantages or sanctions other
than loss of nationality for persons who stay abroad for
considerable periods, especially if accompanied by re-
fusal to perform military service in the country of
which they are nationals, or who fail to register.
VI. STATELESSNESS RESULTING FROM IMPOSITION OF
PENALTY OR FROM PERSECUTION
148. Article 7 of the draft Convention on the Elimina-
tion of Future Statelessness provides as follows:
Article 7
The Parties shall not deprive their nationals of
nationality by way of penalty if such deprivation
renders them stateless.
Article 7 of the draft Convention on the Reduction
of Future Statelessness provides as follows :
Article 7
1. The Parties shall not deprive their nationals of
nationality by way of penalty, if such deprivation
renders them stateless, except on the ground that
they voluntarily enter or continue in the service
of a foreign country in disregard of an express pro-
hibition of their State.
2. In the case to which paragraph 1 above refers,
the deprivation shall be pronounced by a judicial
authority acting in accordance with due process of
law.
149. Except for the provision in the latter convention
relating to loss of nationality by way of penalty on the
ground of voluntary entry or continuance in the service
of a foreign country, article 7 of both conventions is
identical. Its effect is comprehensive. With regard to
the draft Convention on the Elimination of Future
Statelessness, the Commission was not called upon to
consider the intrinsic merits and the necessity of dep-
rivation of nationality by way of penalty. It is suffi-
cient, in order to bring it within the orbit of the con-
vention, if such deprivation results in statelessness.
However, with regard to the draft Convention on the
Reduction of Future Statelessness, the Commission sur-
veyed the various occasions for deprivation of nation-
ality by way of penalty and came to the conclusion that
only that referred to above-namely, that arising out
of service with a foreign country-ought to be per-
mitted by the convention. While various States provide
for various other causes of loss of nationality by way
of penalty, none of these causes was found to have
received sufficiently wide recognition to warrant re-
tention in a general convention of the type now pro-
posed by the Commission. Deprivation of nationality
is, as a rule, ancillary to the principal penalty for an
offence committed by a person. While it is not within
the province of the Commission to express an opinion
on deprivation of nationality by way of penalty in gen-
eral, it considers that it ought not to operate or be
imposed in such a manner as to result in statelessness.
This, in fact, is the legislative policy of some countries.
150. It must be noted that, apart from deprivation
of nationality resulting in statelessness, the conventions
do not prevent parties from depriving persons, by way
of penalty, of political and other rights usually asso-
ciated with nationality. In some 'countries, the sum
total of all or some political rights is occasionally de-
scribed as rights of citizenship as distinguished from
nationality. There is nothing, according to the draft
conventions, to deprive the parties of the right to im-
pose penalties of that description.
451. The Commission came to the conclusion, after
considerable discussion, that there is no occasion to
distinguish, for the purpose of statelessness caused by
deprivation of nationality by way of penalty, between
nationals who are natural born and those who are natu-
ralized. As in other cases of loss of nationality, the
Commission does not consider that it is within its
province to express a view on the propriety of dis-
tinguishing between the two classes of citizens either
generally or in connexion with deprivation of nation-
ality on account of disloyalty or otherwise. In so far
as such deprivation results in statelessness, it is ruled
out by both draft conventions except in the case, ap-
plicable to all nationals alike, provided for in the first
paragraph of article 7 of the draft Convention on the
Reduction of Future Statelessness. The Commission
did not find it necessary to decide whether the annul-
ment of a naturalization on account of fraud in obtain-
ing it amounts to a withdrawal of nationality (or nat-
uralization) by way of penalty. There may be room for
the view that in such cases the naturalization, having
been obtained by fraud, is null and void ab initio. The
correct solution of the difficulty, in the view of the Com-
mission, is that such withdrawal or annulment of nat-
uralization is, so far as it results in statelessness, not
compatible with the draft Convention on the Elimina-
tion of Future Statelessness. It may be compatible with
the draft Convention on the Reduction of Future State-
lessness-although even in that case it would be in ac-
cordance with the spirit of the convention that such
annulment should not take place after a considerable
period has elapsed since the naturalization. This objec-
tion will not, of course, apply if the person in question
has another nationality.
152. Article 8 of both conventions provides as follows :
Article 8
The Parties shall not deprive any person or group
of persons of their nationality on racial, ethnical,
religious, or political grounds.
Unlike in other articles of the two conventions, the
obligation undertaken by the parties does not depend
on whether the persons deprived of their nationality
become, as the result, stateless. The obligation is an
absolute one. The Commission considered whether in
a convention the sole object of which is the elimination
of statelessness it is proper to introduce an obligation of
this kind. It came to the conclusion that any other
formulation of this article would be open to serious
objection. It would lend itself to the interpretation that
persecution through deprivation of nationality on racial,
ethnical, religious or political grounds is admissible pro-
vided it does not result in statelessness. Even if no
such interpretation could reasonably be put on the
article in question, there was agreement that it would
be undesirable to formulate anything in the nature of
a conditional and qualified prohibition of oppression
and persecution. Moreover, it is a fact that as a rule
deprivation of nationality in such circumstances results
in statelessness.
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VIL STATELESSNESS AS THE RESULT OF CHANGES OF
TERRITORY
153. Article 9 of both conventions provides as follows:
Article 9
1. Treaties providing for transfer of territories
shall include provisions for ensuring that, subject
to the exercise of the right of option, inhabitants
of these territories shall not become stateless.
2. In the absence of such provisions, States to
which territory is transferred, or which otherwise
acquire territory, or new States formed on territory
previously belonging to another State or States
shall confer their nationality upon the inhabitants
of such territory unless such persons retain their
former nationality by option or otherwise or un-
less they have or acquire another nationality.
154. The first paragraph of this article lays upon the
parties the obligation to endeavour, in any treaties which
they may conclude in the future with respect to trans-
fers of territory, to include provisions ensuring that
the inhabitants of the territories concerned do not be-
come stateless. In the nature of things, no more strin-
gent obligation can be imposed upon them in cases in
which the other contracting party is not a party to either
convention on statelessness. However, the obligation of
paragraph 1 is fully operative in cases in which both
parties to the treaty transferring territory are parties
to one of the two conventions on statelessness.
155. In making the provision ensuring the avoidance
of statelessness subject to safeguarding the right of
option, the draft conventions go outside their primary
purpose, namely, the elimination or reduction of state-
lessness. However, the Commission is of the opinion
that the right of option of nationality has acquired a
degree of recognition so general that a failure to safe-
guard it in a convention of this type would signify a
retrogressive step or, at least, that it would lend itself
to misinterpretation.
VIII. INTERPRETATION AND IMPLEMENTATION OF THE
CONVENTIONS
156. Article 10 of both conventions provides as fol-
lows :
Article 10
1. The Parties undertake to establish, within the
framework of the United Nations, an agency to
act on behalf of stateless persons before govern-
ments or before the tribunal referred to in para-
graph 2.
2. The Parties undertake to establish, within the
framework of the United Nations, a tribunal which
shall be competent to decide upon complaints pre-
sented by the agency referred to in paragraph 1 on
behalf of individuals claiming to have been denied
nationality in violation of the provisions of the con-
vention.
3. If, within two years of the entry into force of
the convention, the agency or the tribunal referred
to in paragraphs 1 and 2 has not been set up by the
Parties, any of the Parties shall have the right to
request the General Assembly to set up such agency
or tribunal.
of the convention shall be submitted to the Inter-
national Court of justice or to the tribunal referred
to in paragraph 2.
157. This article, which is common to both conven-
tions, contains, in the first instance, a provision for the
settlement of disputes between the contracting parties
concerning the interpretation or application of the con-
ventions. That provision is common to most interna-
tional conventions of a legislative character, in partic-
ular, those concluded under the auspices of the United
Nations. The fact that in this case the direct beneficiaries
of the conventions are persons who, ex hypothesi, do
not possess the nationality of the State interceding on
their behalf is not, in the view of the Commission, de-
cisive. The rule as to nationality of claims is not an
absolute rule of international law.'' It is particularly
inapplicable to cases of statelessness. Moreover, parties
to these conventions may fairly be held to possess an
independent and general interest of their own in the
maintenance of the principles of the conventions. As
such they are entitled to invoke the jurisdiction of the
International Court of justice or the arbitral tribunal
in accordance with paragraph 2 of article 10 of the two
conventions.
158. The Commission came to the conclusion, after
considerable discussion, that that tribunal, to be estab-
lished within the framework of the United Nations,
should also be accessible to individuals acting through
an agency, equally to be established within the frame-
work of the United Nations. The Commission did not
consider that it was necessary for it to express an
opinion on questions such as whether individuals are
subjects of international law or whether they ought to
have direct access to international tribunals or other
international bodies. The Commission was concerned
with the special case of persons who are threatened
with statelessness and who, by definition, have no State
to protect them and to espouse their cause.
159. On the other hand, the Commission felt that
such persons could not easily find the means or possess
the requisite information for instituting proceedings
before an international tribunal. It is for that reason
that it was considered necessary to make provision for
an international agency to act on behalf of those per-
sons. That agency would also subject complaints to
preliminary examination with the view to ensuring that
complaints which are obviously unfounded should not
impede the expeditious functioning of the tribunal.
Finally, it would be the task of the agency to act on
behalf of the persons concerned before governments,
prior to initiation of proceedings before the tribunal,
with a view to disposing of the complaints by appro-
priate procedures of inquiry and of representations
made to governments.
160. It was not considered necessary at this juncture
to provide for the details of the organization either of
the agency referred to in paragraph 1 or of the tribunal
referred to in paragraph 2. That task must be left, in
the first instance, to the contracting parties. It is only
when they have failed to take the steps necessary for
the purpose or when they have failed to come to an
agreement on the subject that the setting up of the
agency or the tribunal or both will become a responsi-
bility of the General Assembly of the United Nations
acting at the request of any of the parties.
17 See Advisory Opinion of the International Court of Jus-
4. The Parties agree that any dispute between tice concerning Reparation for Injuries Suffered in the Serv-
them concerning the interpretation or application ice of the United Nations; I.C.J., Reports, 1949, page 181.
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161. After the draft conventions have been approved implied in t e approva o e conventions, it is con-
by the General Assembly and accepted by States, they sonant with the Purposes and Principles of the United
will become, in a general sense, United Nations con- Nations that the Organization should assist actively in
ventions. The United Nations, by giving its approval the implementation of conventions of that kind. State-
to the conventions, will accept the responsibilities-in- less persons, or persons threatened with statelessness,
eluding those of a financial nature-devolving upon it have no State to protect them. It is proper that they
under the various provisions of article 10. The Corn- should be protected, in conformity with international
mission considers that, quite apart from any obligation conventions, by the United Nations.
IX. TEXTS OF THE DRAFT CONVENTIONS
162. The texts of the two draft conventions are as follows :
DRAFT CONVENTION ON THE ELIMINATION OF FUTURE
STATELESSNESS
DRAFT CONVENTION ON TIIE REDUCTION OF FUTURE
STATELESSNESS
Preamble
Whereas the Universal Declaration of Human
Rights proclaims that "everyone has the right to a
nationality",
Whereas the Economic and Social Council has
recognized that the problem of stateless persons
demands "the taking of joint and separate action
by Member nations in co-operation with the United
Nations to ensure that everyone shall have an ef-
fective right to a nationality",
Whereas statelessness often results in suffer-
ing and hardship shocking to conscience and of-
fensive to the dignity of man,
Whereas statelessness is frequently productive
of friction between States,
Whereas statelessness is inconsistent with the
existing principle which postulates nationality as
a condition of the enjoyment by the individual of
certain rights recognized by international law,
Whereas the practice of many States has in-
creasingly tended to the progressive elimination of
statelessness,
Whereas it is imperative, by international agree-
ment, to eliminate the evils of statelessness,
The Contracting Parties
Hereby agree as follows:
Article 1
A child who would otherwise be stateless shall
acquire at birth the nationality of the Party in whose
territory it is born.
Article 2
For the purpose of article 1, a foundling, so long
as its place of birth is unknown, shall be presumed
to have, been born in the territory of the Party
in which it is found.
Preamble
Whereas the Universal Declaration of Human
Rights proclaims that "everyone has the right to a
nationality",
Whereas the Economic and Social Council has
recognized that the problem of stateless persons
demands "the taking of joint and separate action by
Member nations in co-operation with the United
Nations to ensure that everyone shall have an effec-
tive right to a nationality",
Whereas statelessness often results in suffer-
ing and hardship shocking to conscience and of-
fensive to the dignity of man,
Whereas statelessness is frequently productive
of friction between States,
Whereas statelessness is inconsistent with the
existing principle which postulates nationality as a
condition of the enjoyment by the individual of
certain rights recognized by international law,
Whereas the practice of many States has in-
creasingly tended to the progressive elimination of
statelessness,
Whereas it is desirable to reduce statelessness,
by international agreement, so far as its total elim-
ination is not possible,
The Contracting Parties
Hereby agree as follows:
Article 1
1. A child who would otherwise be stateless shall
acquire at birth the nationality, of the Party in whose
territory it is born.
2. The national law of the Party may make pres-
ervation of such nationality dependent on the person
being normally resident in its territory until the age
of eighteen, and provide that to retain nationality
he must comply with such other conditions as are
required from all persons born in the Party's ter-
ritory.
3. If, in consequence of the operation of such
conditions as are envisaged in paragraph 2, a person
on attaining the age of eighteen does not retain the
nationality of the State of birth, he shall acquire
the nationality of one of his parents. The nationality
of the father shall prevail over that of the mother.
Article 2
For the purpose of article 1, a foundling, so long
as its place of birth is unknown, shall be presumed
to have been born in the territory of the Party
in which it is found.
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For the purpose of article 1, birth on a vessel
shall be deemed to have taken place within the ter-
ritory of the State whose flag the vessel flies. Birth
on an aircraft shall be considered to have taken
place within the territory of the State where the
aircraft is registered.
Article 4
Whenever article 1 does not apply on account of
a child having been born in the territory of a State
which is not a Party to this convention, it shall
acquire the nationality of the Party of which one
of its parents is a national. The nationality of the
father shall prevail over that of the mother.
Article 5
1. If the law of a Party entails loss of nationality
as a consequence of any change in the personal
status of a person such as marriage, termination of
marriage, legitimation, recognition, or adoption,
such loss shall be conditional upon acquisition of
another nationality.
2. The change or loss of the nationality of a spouse
or of a parent shall not entail the loss of nationality
by the other spouse or by the children unless they
have or acquire another nationality.
Article 6
1. Renunciation shall not result in loss of national-
ity unless the person renouncing it has or acquires
another nationality.
2. Persons who seek naturalization in a foreign
country or who obtain an expatriation permit for
that purpose shall not lose their nationality unless
they acquire the nationality of that foreign country.
3. Persons shall not lose their nationality, so as to
become stateless, on the ground of departure, stay
abroad, failure to register or on any other similar
ground.
Article 7
The Parties shall not deprive their nationals of
nationality by way of penalty if such deprivation
renders them stateless.
For the purpose of article 1, birth on a vessel
shall be deemed to have taken place within the
territory of the State whose flag the vessel flies.
Birth on an aircraft shall be considered to have
taken place within the territory of the State where
the aircraft is registered.
Article 4
Whenever article 1 does not apply on account of
a child having been born in the territory of a State
which is not a Party to this convention, it shall
acquire the nationality of the Party of which one
of its parents is a national. The nationality of the
father shall prevail over that of the mother.
Article S
1. If the law of a Party entails loss of nationality
as a consequence of any change in the personal
status of a person such as marriage, termination
of marriage, legitimation, recognition, or adoption,
such loss shall be conditional upon acquisition of an-
other nationality.
2. The change or loss of the nationality of a spouse
or of a parent shall not entail the loss of nationality
by the other spouse or by the children unless they
have or acquire another nationality.
Article 6
1. Renunciation shall not result in loss of nation-
ality unless the person renouncing it has or ac-
quires another nationality.
2. Persons who seek naturalization in a foreign
country or who obtain an expatriation permit for
that purpose shall not lose their nationality unless
they acquire the nationality of that foreign country.
3. Persons shall not lose their nationality, so as to
become stateless, on the ground of departure, stay
abroad, failure to register or on any other similar
ground.
Article 7
The Parties shall not deprive their nationals of
nationality by way of penalty if such deprivation
renders them stateless, except on the ground that
they voluntarily enter or continue in the service of
a foreign country in disregard of an express pro-
hibition of their State.
2. In the case to which paragraph 1 above refers,
the deprivation shall be pronounced by a judicial
authority acting in accordance with due process of
law.
Article 8
The Parties shall not deprive any person or group
of persons of their nationality on racial, ethnical,
religious or political grounds.
1. Treaties providing for transfer of territories shall
include provisions for ensuring that, subject to the
exercise of the right of option, inhabitants of these
territories shall not become stateless.
2. In the absence of such provisions, States to
which territory is transferred, or which otherwise
acquire territory, or new States formed on territory
previously belonging to another State or States
shall confer their nationality upon the inhabitants
Article 8
The Parties shall not deprive any person or group
of persons of their nationality on racial, ethnical, re-
ligious, or political grounds.
Article 9
1. Treaties providing for transfer of territories
shall include provisions for ensuring that, subject
to the exercise of the right of option, inhabitants of
these territories shall not become stateless.
2. In the absence of such provisions, States to
which territory is transferred, or which otherwise
acquire territory, or new States formed on territory
previously belonging to another State or States
shall confer their nationality upon the inhabitants
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 of such ter rA-Rry u&Te~socg%l 5 0?9OiQ/A%? hef lA-F F5 @hOQ SjjF*Q1QM1AM1 ersons retain their
therwise or unless
i
i
former nationality by option or otherwise or unless
they have or acquire another nationality.
Article 10
1. The Parties undertake to establish, within the
framework of the United Nations, an agency to act
on behalf of stateless persons before governments
or before the tribunal referred to in paragraph 2.
2. The Parties undertake to establish, within the
framework of the United Nations, a tribunal which
shall be competent to decide upon complaints pre-
sented by the agency referred to in paragraph 1 on
behalf of individuals claiming to have been denied
nationality in violation of the provisions of the
convention.
3. If, within two years of the entry into force
of the convention, the agency or the tribunal re-
ferred to in paragraphs 1 and 2 has not been set up
by the Parties, any of the Parties shall have the
right to request the General Assembly to set up
such agency or tribunal.
4. The Parties agree that any dispute between
them concerning the interpretation or application
of the convention shall be submitted to the Inter-
national Court of justice or to the tribunal referred
to in paragraph 2.
on or o
ty by opt
former national
they have or acquire another nationality.
Article 10
1. The Parties undertake to establish, within the
framework of the United Nations, an agency to act
on behalf of stateless persons before governments
or before the tribunal referred to in paragraph 2.
2. The Parties undertake to establish, within the
framework of the United Nations, a tribunal which
shall be competent to decide upon complaints pre-
sented by the agency referred to in paragraph 1 on
behalf of individuals claiming to have been denied
nationality in violation of the provisions of the con-
vention.
3. If, within two years of the entry into force of
the convention, the agency or the tribunal referred
to in paragraphs 1 and 2 has not been set up by
the Parties, any of the Parties shall have the right
to request the General Assembly to set up such
agency or tribunal.
4. The Parties agree that any dispute between
them concerning the interpretation or application of
the convention shall be submitted to the Interna-
tional Court of justice or to the tribunal referred
to in paragraph 2.
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Chapter V
I. WAYS AND MEANS OF PROVIDING FOR THE EXPRES-
SION OF DISSENTING OPINIONS IN THE REPORT OF
THE COMMISSION COVERING THE WORK OF EACH
SESSION
163. The International Law Commission discussed ' a
proposal to recognize :
(a) That any member of the Commission may at-
tach a statement of his dissenting opinion to any de-
cision by the Commission on draft rules of interna-
tional law, whenever the whole or part of the said
decision does not express the unanimous opinion of the
members of the Commission;
(b) That any dissenting member may briefly explain
his views in a footnote if, in cases other than those
covered by sub-paragraph (a) above, a decision has
been taken on a question of principle affecting the work
of the Commission.
This proposal was rejected by the Commission. During
the discussion, it was proposed that members of the
Commission should be entitled to record, in an annex to
the final report, their dissent from all or part of a re-
port adopted by the Commission and to append a brief
statement of the reasons for their dissenting opinion,
at a length agreed to by the Chairman or, in the event
of disagreement between the Chairman and the member
concerned, by the officers of the Commission. The pro-
posal was not accepted, the vote being equally divided.
The existing rule, adopted at the third session, provides
that detailed explanations of dissenting opinions should
not be inserted in the report, but merely a statement to
the effect that, for the reasons given in the summary
records, a member was opposed to the adoption of a
particular passage of the report.
H. REPORTS FOR THE SIXTH SESSION OF THE
COMMISSION
(i) Law of treaties
164. The Commission decided to request its special
rapporteur on the law of treaties, Mr. Lauterpacht, to
continue his work on the subject and to present a
further report for discussion at the next session to-
gether with the report (A/CN.4/63) held over from
the present session. After a brief exchange of views
the Commission decided that the special rapporteur,
in the final draft of his report, should take account of
any observations which members of the Commission
might make in the form of written statements.
(ii) Regime of the high seas
165. The special rapporteur on the regime of the
high seas, Mr. Francois, was invited to undertake a fur-
ther study of this topic and to prepare for the next
session a report on subjects within this field which were
not covered in his third and fifth re orts (A/CN 4 51
/
(iii) Nationality including statelessness
166. Mr. Cordova, special rapporteur on the topic of
nationality including statelessness, was requested to
continue the work on the problem of the elimination or
reduction of present statelessness which he had begun
in a preliminary report (A/CN.4/75) submitted to the
present session. He was also invited to study the other
aspects of the topic of nationality and to make in this
respect such proposals to the Commission as he might
deem appropriate.
(iv) Draft Code of Offences against the Peace and
Security of Mankind
167. At its third session in 1951, the Commission com-
pleted a draft Code of Offences against the Peace and
Security of Mankind and submitted it to the General
Assembly in its report on the session. The question of
the draft code was included in the provisional agenda
of the sixth session of the General Assembly, but was,
by a decision of the Assembly on 13 November 1951,
postponed until the seventh session.
168. As a result of this decision, the Secretary-Gen-
eral on 17 December 1951 addressed a circular letter to
the governments of Member States, in which he drew
their attention to the draft code and invited them to
communicate to him their comments or observations for
submission to the General Assembly. Comments were
received from fourteen governments and were repro-
duced in documents A/2162 and A/2162/Add.l.18 The
Secretary-General also included the question of the
draft code in the provisional agenda of the seventh
session of the General Assembly. The item was, how-
ever, not included in the final agenda of the seventh
session on the understanding that the matter would
continue to be considered by the International Law
Commission.
169. In view of these circumstances, the Commission
decided to request Mr. Spiropoulos, special rapporteur
on the subject, to undertake a further study of the
question and to prepare a report for submission at the
next session.
III. REQUEST OF THE GENERAL ASSEMBLY CONCERN-
ING THE CODIFICATION OF THE TOPIC "DIPLOMATIC
INTERCOURSE AND IMMUNITIES"
170. By its resolution 685 (VII) of 5 December 1952,
the General Assembly requested the Commission "as
soon as it considers it possible, to undertake the codifica-
tion of the topic `Diplomatic intercourse and immu-
nities', and to treat it as a priority topic". In view of
the fact that the periodical election of the Commission
is due to take place at the eighth session of the General
Assembly, the Commission decided to postpone a de-
cision on this matter until its next session.
P
18 See Official Records of the General Assembly, Seventh Ses-
and A/CN.4/69). sion, Annexes, agenda item 54.
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IV. REPRESENTATION
ForTReleGaES &I9 0Ag ,( LCCIA-t eg1 AFWt@iQhiipQAltaet in Geneva begin-
171. The Commission decided that it should be rep-
resented at the eighth session of the General Assembly,
by its Chairman, Mr. J. P. A. Francois, for purposes
of consultation.
V. TERM OF OFFICE OF MEMBERS AND RAPPORTEURS
172. The Commission decided that, in accordance
with the practice in United Nations organs, the present
term of office of its members should expire on 31
December 1953. A special rapporteur who had not been
re-elected as a member of the Commission by the Gen-
eral Assembly would have to cease work on that date.
However, a special rapporteur who had been re-elected
should continue his work unless and until the Commis-
sion as newly constituted decides otherwise.
VI. DATE AND PLACE OF TIIE SIXTH SESSION OF THE
COMMISSION
173. The Commission decided, after consulting the
Secretary-General in accordance with the terms of
article 12 of its Statute and receiving the views of the
latter, to hold its next session in Geneva, Switzerland,
for a period of ten weeks beginning on 17 May 1954.
The Commission is unanimously in favour of Geneva as
a meeting-place in preference to New York, as general
conditions in Geneva are more conducive to efficiency
in the kind of work the members of the Commission
have to perform. In particular, the library facilities in
the European Office with material gathered and or-
ganized since the days of the League of Nations, have
proved to be unsurpassed in the field of international
law.
174. The Commission is aware that General Assembly
resolution 694(VII) adopted on 20 December 1952,
provides that the International Law Commission would
meet in Geneva only when its session could be held
there without overlapping with the summer session of
the Economic and Social Council. Such overlapping as
ning on 17 May 1954 is, in the opinion of the Commis-
sion, hardly avoidable under present circumstances.
There are grave objections to holding the session of the
Commission after the session of the Economic and
Social Council. The session would then overlap with
the session of the General Assembly with the result
that the report of the Commission could not be con-
sidered by the General Assembly until its following
session, that the Secretariat would have difficulties in
assigning adequate staff to serve the Commission, and
that certain members who are also members of delega-
tions to the General Assembly might not be able to
attend the session of the Commission.
175. On the other hand, a ten weeks' session to be
held in its entirety before the summer session of the
Economic and Social Council would also be open to
objection. It would have to begin towards the end of
April 1954, and those members of the Commission who
are university professors would not be able to attend
meetings before 1 June at the earliest. The Commission
would therefore be deprived of their co-operation for
more than a month. Under these circumstances, the
opening date of 17 May was accepted in order to reduce
to the minimum both the overlapping with the Council
session and the period during which the Commission
would have to be without the presence of some of its
members.
176. As regards the length of the session, a period of
ten weeks is considered as a minimum. Because of lack
of time the Commission has been forced to postpone
the consideration of two important subjects, namely,
the law of treaties and the regime of the territorial sea.
Essential aspects of the subject of nationality and of
the regime of the high seas still remain to be studied.
In the course of its next session the Commission will
also have to re-examine the draft Code of Offences
against the Peace and Security of Mankind. It is there-
fore imperative for the fulfilment of the task entrusted
to the Commission that it shall be able to devote suffi-
cient time to its work.
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Comments by governments on the draft of arbitral procedure prepared by the International Law Commis.
mission at its fourth session in 1952 is
1. ARGENTINA
Letter from the permanent delegation of
Argentina to the United Nations
[ Original: Spanish
[13 November 19521
Without prejudice to any comments which the
Argentine Government may wish to make when it has
studied the articles of the draft in detail, I wish to
point out that, in conformity with the principles upheld
by my country at various international conferences, it
considers that arbitral procedure should be established
only for controversies which may arise in the future
and which do not originate from or bear any relation
to causes, situations or circumstances existing prior
to the signature of a treaty on the subject.
Similarly, with regard to article 2, my Government
considers that it should establish in unequivocal terms
the right of States to settle for themselves questions
which are within their own domestic jurisdiction.
Having made these two observations, which it con-
siders fundamental, my Government will study with
the greatest care the draft prepared by the International
Law Commission, for it has always accorded its fullest
support to arbitration as an institution of International
law.
2. BELGIUM
Letter from the permanent delegation of
Belgium to the United Nations
[Original: French
[13 March 19531
In the Belgian Government's opinion the Commis-
sion appears to have gone outside its task of drawing up
rules on arbitral procedure, since the proposed draft
deals indiscriminately with concepts of arbitration and
of international justice.
The last paragraph of the introduction states that
two currents of opinion were represented in the Com-
mission. "The first followed the conception of arbitra-
tion according to which the agreement of the parties
is the essential condition not only of the original obliga-
tion to have recourse to arbitration, but also of the
continuation and the effectiveness of arbitration pro-
ceedings at every stage. The second conception, which
prevailed in the draft as adopted and which may be
described as judicial arbitration, was based on the
necessity of provision being made for safeguarding the
efficacy of the obligation to arbitrate in all cases in
which, after the conclusion of the arbitration agree-
ment, the attitude of the parties threatens to render
nugatory the original undertaking".
19 See Official Records of the General Assembly, Seventh Ses-
sion, Supplement No. 9, document A/2163.
This second conception seems hardly acceptable if it
is hoped to secure the support of the majority of States
for the draft on arbitral procedure.
The Commission's proposals do not seem acceptable
in their present form and certainly do not correspond
to the traditional conception of arbitration according to
which the parties to a dispute have the right to decide
on the arbitrability of the dispute, select the arbitrators
and set the limits of the compromis.
On the contrary, the mere undertaking to comply
with the new procedure would deprive States even of
the right of deciding whether the dispute should be
submitted to arbitration, since the International Court
of justice would pass final judgment on the question
on the mere application of one of the parties.
It may be presumed that the parties will submit to
the decisions of the Court or of the arbitral tribunal,
as the case may be, once they have decided, of their
own free will, that the dispute is arbitrable and have
chosen the arbitrators.
We believe that the draft should be changed along
these lines.
3. BRAZIL
Comments of the Government of Brazil transmitted by
a note verbale dated 24 March 1953 from the perma-
nent delegation of Brazil to the United Nations
[Original: Portuguese]
I
The Brazilian Government would prefer less em-
phasis in the draft on the legal character of arbitration.
Arbitration procedure need not be confined to settle-
ments based on law. While in most cases arbitration is
used to settle legal disputes, there is nothing to prevent
its use, as numerous international instruments attest, to
settle non-legal disputes where the arbitrators are em-
powered to base their decisions not only on law but also
on equity or on special principles selected by the parties.
This being the case, certain articles of the draft might
leave the parties greater latitude. For example, article
12 of the draft could be rendered more flexible by say-
ing in general terms the arbitral tribunal should be
guided by international law save where the parties
have expressly agreed otherwise. Paragraph 2 of article
12 should be deleted since it lays down a rule that
should be determined in special agreements, at the
discretion of the parties.
Similarly in article 9, reference might be made to
the principles and rules to be applied by the tribunal
rather than to the "law to be applied by the tribunal".
To take another example, in article 22, the fact that
the arbitral tribunal owes its existence to the will of
the parties is apparently ignored.
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Article 29 might fix a time limit for an application
for the revision of the award. The period might be the
same as that provided for the revision of judgments
of the International Court of justice (ten years, ac-
cording to article 61, paragraph 5 of the Statute).
III
Failure to include a full statement of
required in article 24, might be made a
annulment of the award in article 30.
reasons, as
ground for
IV
The establishment of a time limit in article 31, para-
graph 2, solely for the cases referred to in paragraphs
(a) and (c) of the previous article hardly seem justi-
fied. In the interest of the public peace and in deference
to the principle that legal situations should be perma-
nently placed beyond doubt, a time limit should be
adopted for any case arising under article 30, paragraph
(b) ; but it might be a somewhat longer one since the
circumstance envisaged will not always be as readily
apparent as those referred to in the other two para-
graphs,
4. CHILE
Letter from the permanent delegation of
Chile to the United Nations
[Original: Spanish]
[2 February 1953]
The Government of Chile is in general agreement
with the text of the above-mentioned draft and be-
lieves the following observations might be of value :
Article 1 provides that "an undertaking to have re-
course to arbitration may apply to existing disputes or
to disputes arising in the future".
The term "disputes" includes, on the one hand, ques-
tions or matters which have been legally formulated
before a competent authority and, on the other hand,
simple disputes or controversies which have not been,
or cannot be, given adequate legal expression or form.
The Government of Chile is therefore of the opinion
that the term "dispute" should be defined, or that its
scope or significance should be restricted, by establish-
ing the principle that a matter already settled does not
constitute a dispute.
The Pact of Bogota on the pacific settlement of in-
ternational disputes, expressly states that the various
procedures to effect such settlement, including arbitra-
tion, "may not be applied to matters already settled by
arrangement between the parties, or by arbitral award,
or by decision of an international court, or which are
governed by agreements or treaties in force on the date
of the conclusion of the present Treaty". (article VI.)
Taken in conjunction with an effort to seek the solu-
tion of disputes by pacific means, the text of the Pact
of Bogota provides a sound basis for international solu-
tions, since it ensures that international treaties and
judgments will be respected.
Article 1, paragraph 3, provides that the undertaking
to have recourse to arbitration "constitutes a legal
obligation which must be carried out in good faith,
whatever the nature of the agreement from which it
results". This last phrase seems to obscure the meaning
which the text was intended to convey. The explana-
tion accompanying the text says that the undertaking
to have recourse to arbitration "may not be based on a
mere verbal agreement", a statement which does not
seem in keeping with the text of the article, which says
that the undertaking must be carried out in good faith,
whatever the nature of the agreement from which it
results, thus also including mere verbal agreements.
Article 8 provides that "a party may propose the dis-
qualification of one of the arbitrators on account of a
fact arising subsequently to the constitution of the tri-
bunal; it may propose the disqualification of one of the
arbitrators on account of a fact arising prior to the
constitution of the tribunal only if it can show,
etc. . . ". The Spanish word sobrevenir (English text:
"arising") means "to happen after something else".
The expression sobrevenida enteriormente, (English
text: "arising prior to") therefore represents a con-
tradiction in terms which should be corrected in order
to avoid possible difficulties of interpretation.
Article 16 says : "For the purpose of securing a com-
plete settlement of the dispute, the tribunal shall de-
cide on any counter-claims or additional or incidental
claims arising out of the subject-matter of the dispute".
The Government of Chile considers that the meaning
of "additional or incidental claims arising out of the
subject-matter of the dispute" should be made clear so
as to avoid the extension of the dispute to points only
remotely related to the main issue, by the submission of
a series of subsidiary petitions.
Such a clarification might be effected, for example, by
laying down that the additional claims should be re-
lated either directly or indirectly to the principal subject
submitted to arbitration, or that they should be of such
a nature that if they were not resolved, any solution
that might be adopted on the principal question would
be ineffective or inoperative.
Article 26 provides that : "As long as the time-limit
set in the compromis has not expired, the tribunal shall
be entitled to rectify mere typographical errors or mis-
takes in calculation in the award".
The expression "typographical errors" only covers
errors which are made in the process of reproducing or
printing a given text, and would not include errors of
fact, wrong dates or incorrect geographical or proper
names appearing in the original text of the sentence or
in the manuscripts or evidence which were available at
the time when the text in question was drawn up.
The article says that the tribunal shall be entitled to
correct such errors "as long qs the time-limit set in
the compromis has not expired_". If the decision was
given a long time before the date of expiry of the
compromis, there would be plenty of time to examine
the calculations and ascertain :what corrections were
necessary; but if the decision was given only a few days
or hours before the expiry of the time limit, and if the
point at issue was a complicated one, it might be impos-
sible to correct the mistakes in time. In such circum-
stances there would have to be further proceedings be-
tween the parties in order to correct the erroneous facts,
dates, names or calculations.
The Government of Chile is therefore of the opinion
that the parties should be given an adequate period of
time within which to make the appropriate observations,
and that this period might begin as from notification
of the decision without regard to the date of expiry
of the compromis. This additional period subsequent
to the decision might be the sarie as that allowed to the
parties to exercise their right under article 28 to request
clarification of any doubtful points to which the de-
cision might give rise.
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Article 27 provides that : "The award is binding upon
the parties when it is rendered, and it must be carried
out in good faith". We consider that the text of this
provision may give rise to difficulties of application,
since the party which has obtained a decision in its
favour may require immediate compliance, while the
other party may submit to the tribunal a question of
interpretation which would delay compliance until the
desired clarification had been obtained. A similar situa-
tion might arise if the decision contained important
errors of calculation or fact, as for example, a mistake
in the date as from which interest or some other pay-
ment is due, etc.
Chile considers that the text of this provision should
be brought into line with the provisions of articles 26
and 28, and that execution of the decision should not
become compulsory until the questions to which those
provisions relate had been settled.
5. INDIA
Letter from the Ministry for Foreign Affairs of India
[6 March 19531
The Government of India are in general agreement
with the draft prepared by the International Law Com-
mission but some of the provisions of these draft articles
depart to such an extent from recognized international
practice in regard to arbitration, and even from the
principles underlying that practice that the Government
of India find themselves unable to accept them in their
present form without reservation.
They therefore suggest that the draft be modified as
follows :
(a): Article 2 of the draft provides that if, prior to
the constitution of an arbitral tribunal, the parties
disagree over the existence of a dispute, or on whether
an existing dispute is within the scope of the obligation
to have recourse to arbitration, the question may be
brought before the International Court of justice on
the application of either party without the consent of
the other. The ruling principle of international arbitra-
tion is that there should be an agreement of both par-
ties, at least in the initial stages of the procedure. Con-
trary to this principle, the effect of the draft article
would be to confer a compulsory jurisdiction on the
International Court without the consent of one party
in regard to a vital question, namely, the arbitrability
of an existing dispute or the existence of an alleged
dispute. The article in its present form is unacceptable
to India.
(b) Article 7, paragraph 3, provides that on the
withdrawal of a member the award may be made by the
remaining members of the tribunal. The vacancy caused
by such withdrawal will presumably not come under
article 6 and there is no other provision for filling the
vacancy. This may not be fair to the party whose mem-
ber has withdrawn, and it is desirable that even on
such occasions, some provision should exist for filling
the vacancy. A possible method may be to empower the
International Court of justice to fill the vacancy, if
the parties do not agree to it within a fixed time.
(c) Article 8 appears to suffer from the same defect
as the one just mentioned in regard to article 7, and
requires to be suitably amended.
(d) Regarding the second sentence of paragraph 1
and paragraph 2 of article 8, it appears desirable that
antagonistic interests are represented, it is not advisable
that the disqualification of one member of the tribunal
should be left to the decision of the other members.
(e) Article 12, paragraph 2, which prohibits a
finding of a non liquet, is not acceptable to India in the
present stage of development of international law.
It is true that according to most juridical systems a
judge in a municipal court may not refuse judgment
on the ground of the silence or obscurity of the law,
but the extension of this principle to judicial arbitra-
tion in the international field appears to be fraught
with grave risks.
(f) Article 16, in the opinion of the Government of
India goes too far. Even under municipal law, the
courts do not admit "counter-claims" and "additional
claims" without distinction. Before the International
Court of justice, a counter-claim is admitted only when
it is directly connected with the subject-matter of the
application and comes within the jurisdiction of the
court (article 63 of the Rules of the International Court
of Justice). There should be some such restriction on
the powers of the tribunal in order to prevent an abuse
of procedure.
(g) In article 23, paragraph 2, the significance of
"may refrain" is not understood. If the parties do not
agree to an extension of the period, under paragraph
1 of the article, the tribunal cannot but refrain from ren-
dering an award. It is doubtful whether, with the per-
missive "may refrain", paragraph 2 serves any useful
purpose at all.
(h) Under article 28, paragraph 2, a dispute about
the meaning and scope of an award is made referable
to the International Court of justice at the request of
one party only. It is only the tribunal which has actually
given a decision, that can furnish an authentic inter-
pretation of that decision, should a dispute arise. If
the tribunal is no longer available, a new dispute has
clearly arisen which must be decided in accordance with
the existing State practice in regard to arbitration, and
not by the imposition of the International Court at the
unilateral request of one of the parties. The Govern-
ment of India are therefore not able to accept this
paragraph of article 28.
(i) Similar considerations apply to the second sen-
tence of paragraph 4 in article 29.
(j) Articles 30, 31 and 32 introduce the possibility
of challenging the validity of an award on certain
grounds. This is contrary to the existing practice under
international law according to which the award settles
the dispute definitely and without appeal (cf. article 81
of the Statute of the Permanent Court of Arbitration).
Any other regulation would detract very considerably
from the value of the award, as it is more than likely
that the defeated party will attempt to challenge the
award on any grounds, whether possible or impossible.
There is the risk of introducing the International Court
of justice as a regular court of revision and thereby
detracting from the efficacy of the arbitral procedure.
These three articles are therefore entirely unacceptable
to the Government of India.
6. NETHERLANDS
Letter from the permanent delegation of the
Netherlands to the United Nations
[1 April 1953]
the International Court should betentrusted bwith making The Netherlands Government were very interested to
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International Law Commission of the United Nations.
This Government welcome any possible contribution
to the further development of an international legal
order in which force will be eliminated as a method
of settling disputes. For that very reason, the Nether-
ft convention of the
d
h
li
ra
e
eve t
lands Government be
International Law Commission to be a valuable con- Even if the number of ratifications would remain
tribution. Nevertheless the draft is giving rise to the small, the Netherlands Government would consider the
following observations. draft important because it contains various regulations
Arbitration ranks among the oldest means of peace- promoting a well-ordered arbitration and because it
fully settling international disputes. In order to main- will therefore induce the States to insert them in future
tain its place beside more recent judicial means, arbi- arbitration treaties or to supplement existing treaties.
tration should retain definite characteristics of its own In addition to these more general observations on the
by which to distinguish itself from judicial settlement. character of the draft convention the Netherlands Gov-
These special qualities should induce governments "tO ernment would like to make the following remarks as
keep arbitration in store as a helpful instrument. to the proposed articles.
Amongst these characteristics the somewhat mediatory Article 3
quality of the award should be first in our mind. Though drafting this article account should be taken of
arbitration must be kept on the "basis of respect for In
he g that count arbitration treaty
law" according to the First Convention of The Hague the e possibility tribunal b b some article
may elppe e Inge been eon treaty
of 1899, the award, however, will always show a pre- ba etween the parties. If in the absence of any agreement
to ad iere to the dl wen ao land arbitrators ware prone between the parties on the composition of the tribunal it
such than de- a must be composed in accordance with the convention,
u adhere apt t to hdo, aw as a in a soon l as esshe they y consider way are
judge is apt one has to take into consideration the regulations on
and equity. h keeping with general will be law the choice of the arbitrators given in a treaty already in
and The rule arbitrators ura lei sed by judges. idgeswill be less re- existence between the parties. Especially when the par-
sorted to by aathan by . ties to the dispute are both parties to The Hague Con-
Another highly important characteristic difference vention on the Pacific Settlement of Disputes, due ac-
between the two institutions is to be found in the greater count should be taken of its rules on the appointment
prerogatives of the parties allowed for in arbitration, of arbitrators.
in regard to both the composition of the tribunal as Article 7
well as the course of the procedure. From this special This article gives some rules which in the opinion
characteristic of arbitration follows the undesired Government, defeat their object. They result
consequence that it is rather easy for an unwilling party of overn much the object. of arbitrators
to find an excuse for shirking its engagements. For that from this emphasizing too
very reason, the barring of this way out has been under withdrawing under pressure of their governments,
study since the First Hague Conference, 1899. The Thereby the possibility of withdrawing for respectable
draft convention of the International Law Commission motives has been pushed far too much into the back-
has paid much attention to the same matter with a view ground. The Netherlands Government judge it inadmis-
to setting up some watertight rules rendering impossible sible that an arbitrator, realizing that his former asso-
any future attempt at invasion by a State which once ciations with the case impel him to withdraw, could
accepted binding arbitration. However praiseworthy be forced by the other members of the tribunal to stay
this ambition is, yet some doubt may arise whether in on. No more could the Netherlands Government see
this way arbitration will not be divested of one of its why, "if any doubt arises in this connexion within the
specific characteristics and whether this may not entail tribunal" the replacement could only be asked by
the impossibility for arbitration to maintain itself be- unanimity. It seems undesirable that one member only
side international judicature. In other words : may not could impede the withdrawal of an arbitrator, whose im-
arbitration lose its attractiveness for the States? partiality is doubted by a majority.
This objection would not be very important, if the The Government think it no more right to have the
States would show willingness to turn to acceptance of procedure continuing before the other arbitrators after
the withdrawal referred to in, this article. The Govern-
l compulsory interne continued disuse instead. But we ment hold it necessary to supplement the tribunal. The or, even worse, ire vent
its a cplete losing disuse of arbitration Netherlands Government realize that such modifications
by ted bye an extension ground, o nof if international this would d d might be abused. However, they deem unjustifiable the
not be worse, compensated complete
not
compulsory jurisdiction. Otherwise, our endeavours way In their opinion suggested by it is article 7 more of over the proposed w draft.
hether a
have an the perfection of arbitration would eventually judge withdrawing after the opening of the proceedings
have an adverse result. for reasons of ill-health would have to be treated ac-
The Netherlands Government are not sure that the
International Law Commission has completely avoided cording to article 6 or to article 7, paragraph 2.
this danger. This Government doubt whether a great Article 8
number of States will not feel inclined to reject the The relation between articles 7 and 8 is not altogether
draft because in their view it might restrict too much clear. The Government understand that the parties may
the lenient rules of arbitral procedure. only invoke article 8, and not article 7, and that article
In order to further the acceptance of the convention 8 also applies "once the proceedings before the tribunal
as much as possible and to prevent petrifaction of arbi- have begun".
tration resulting from aspirations towards perfection, In the case provided for by article 8, the Netherlands
the International Law Commission might consider a Government do not think it right to ask for a unanimous
clause roviding for an opportunity to accept the con- decision of the other members of the tribunal. Without
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vention with reservations. This might be dune eftiter y
allowing any reservations or b~ indicating which ar-
ticles could be excepted from ratification. Even if exten-
sive use would be made of the opportunity to make
reservations, the new obligations resulting from the
acceptance of the other articles might be regarded again.
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doubt the recusation of a judge is a grave matter, which
ought to be decided upon with caution. On the other
hand, the confidence to be placed in the absolute integ-
rity and impartiality of arbitrators is of such paramount
importance that we must exclude the possibility of a
judge staying on in spite of the fact that he has lost
the confidence of the majority of the tribunal. It seems
unwarranted that such doubt about the presence of
grounds for recusation be precluded from causing this
recusation, whenever one member of the tribunal ap-
pears willing to cover the accused against the three
other members who have lost their confidence in him.
Article 9
The Government wonder whether experience has not
taught the desirability of inserting a new paragraph-
perhaps after article 9 (d)-reading: "The nature and
the way of administering evidence to be offered to the
tribunal" ("la nature et le mode d'administration des
preuves presentees an Tribunal"). Originally such a
proposal seems to have been put forward by the Com-
mission. This Government do not know why this propo-
sition was eventually dropped.
In paragraph (f) "a decision" should be substituted
for "an award".
Article 11
The Netherlands Government feel some doubt about
the necessity of giving the tribunal power to interpret
the compromis in deviation from the interpretation on
which the parties themselves agree. This power seems
undesirable, and this Government propose to add to
article 11 the words: "if the parties are at variance in
this respect" ("si les parties ne sont pas d'accord d ce
sujet").
Article 13
The Netherlands Government are of the opinion that
this rule, which according to the wording of the article
refers exclusively to disagreement on procedure, should
be extended to any subject that according to article 9
must be included in the compromis.
Article 14
In the opinion of the Netherlands Government this
article is redundant. The Government do not deny the
correctness of the principle expressed in this article,
but they realize that other principles-like the absolute
impartiality of the arbitrators-are as well a requisite
for every tribunal without their being expressly laid
down in the convention. By inserting a special article
on the equality of the parties in the proceedings before
the tribunal, one might cause some doubt whether
other principles of arbitral procedure are considered of
Article 16
The words "for the purpose of securing a complete
settlement of the dispute" might be taken to constitute
a restrictive qualification on the right of the tribunal to
decide on any additional claim. This implication ap-
parently not being meant, a different wording might be
chosen.
Article 28
The French text "sauf accord entre les parties" seems
preferable to the English text "unless the parties agree
otherwise", because the first indicates clearly that this
agreement may have been arrived at in an earlier treaty.
Article 29
In paragraph 2 it should be indicated that the term
of six months starts at the moment of the "discovery
of the new fact" by the party applying for revision.
The wording of the third paragraph should also be
altered. One cannot conceive of the proceedings for
revision to be opened by a judgment of the tribunal re-
cording the existence of an alleged new fact, because
this judgment can only be contradictorily arrived at.
Therefore, the proceedings leading towards this judg-
ment are part of the "proceedings for revision".
7. NORWAY
Letter from the permanent delegation of Norway to
the United Nations (received 25 February 1953)
The Norwegian Government is in agreement with
the principles upon which the draft is based and . .
Norway could adhere to a convention embodying in
the main the provisions contained in the draft. It is
suggested, however, that the situation with regard to
already existing bilateral or multilateral treaties con-
cerning international arbitral procedure be clarified,
when the draft is reconsidered by the Commission at its
next session. In the opinion of the Norwegian Govern-
ment it is not clear from the present draft whether the
convention resulting from the draft would replace older
bilateral or multilateral treaties on international arbitral
procedure, as for instance The Hague Convention of
1907 regarding pacific settlement of international dis-
putes or the General Act of 1928 (as revised in 1949),
or whether it would be supplementary to such treaties
as between States parties to them.
8. SWEDEN
Letter from the Ministry for Foreign Affairs
of Sweden
less significance. [Original. French]
Moreover, it should be noted that the requirement of [19 March 1953]
equality, expressly laid down here, could by its very The text prepared by the Commission contains some
vagueness afford an opportunity for abuse in applying parts which its authors regard as the codification of
for the annulment of the award, as mentioned in the existing international law and other parts which are
comment on article 14. not of this nature but constitute suggestions for future
Article 15 legislation. The presence of the latter suggests that
the draft is intended as the forerunner of an interna-
The wording that the parties should "co-operate with tional convention in which its various articles would Be
one another . . . in the production of evidence" gives reproduced. Without going into the details of the draft,
the impression that every party must collaborate in the Swedish Government considers it suitable to serve
the gathering of evidence to be used against itself, which as a basis for such an undertaking.
no doubt cannot have been intended. Nevertheless, the Swedish Government wishes to
One might consider giving the tribunal power to emphasize that the Revised General Act for the Pacific
"visit the scene" (provided that the interested party Settlement of International Disputes adopted by the
offers to pay the costs) even if the other party is not General Assembly on 28 April 1949 already seems to
willing to co-operate.
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36
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00010001-3 d t n of an
io y
draft. Thus, chapter III of the General Act deals with
the arbitration of non-legal disputes, while the Com-
mission's draft seems to apply to both legal and non-
legal disputes. The Swedish Government doubts the
advisability of establishing identical rules for the arbi-
tration of these two types of disputes. It might be
preferable to draw some distinctions, in particular with
regard to the legal and other rules on the basis of which
the arbitral tribunal will give its awards. The Swedish
Government reserves its position on this particular point
as well as on the more general question of the relation
between the General Act and a possible future con-
vention.
9. UNITED KINGDOM OF GREAT BRITAIN AND
NORTHERN IRELAND
Letter from the permanent delegation of the
United Kingdom to the United Nations
[27 February 19531
The United Kingdom Government have studied with
interest the draft code on arbitral procedure prepared
by the International Law Commission at its fourth ses-
sion in 1952, and wish to congratulate the Commission
on the results achieved. The United Kingdom Govern-
ment find themselves in very general agreement with
the provisions of the draft code, subject to the com-
ments made below on articles 9 and 29 to 32.
The United Kingdom Government approve in par-
ticular the attitude taken up by the Commission in the
paragraphs of the report which were numbered 17 to
20 in the form in which the draft code appeared in the
report of the Commission covering the work of its
fourth session (A/2163).
The United Kingdom Government also strongly sup-
port the line taken by the Commission in basing itself
on the second of the two conceptions set out in the
paragraph of the report numbered 24 in the same docu-
ment-that is to say, that judicial arbitration is based
on the necessity of provision being made for safeguard-
ing the efficacy of the obligation to submit the case to
arbitration in all cases in which it may happen that,
after the conclusion of the arbitration agreement, the
attitude of the parties threatens to render nugatory the
original undertaking.
As regards article 9 of the draft code, and while the
United Kingdom Government have no objection what-
ever to the terms of this article, it appears to them to be
based on the assumption that the natural method of
submitting a dispute to arbitration where there are no
prior provisions which suffice for the purpose, is by
means of a compromis. Generally speaking, however,
h +1- d of submission by means of a compromis is
o
h
might be ordered by t e tri unal, an no ques
compromis would arise. This is also the normal method
of procedure in disputes brought before the Interna-
tional Court of justice except in those cases where the
parties, not being bound by an acceptance of the Court's
compulsory jurisdiction under article 36 of the Statute,
go before the Court by agreement, or where, although
they are so bound, they prefer to submit the dispute in
the form of a compromis. In all other, and in the great
majority of cases, the proceedings are begun by a writ-
ten application addressed to the Registrar by one of
the parties.
It would seem that article 9 might be modified to take
account of this position.
The United Kingdom Government also have some
doubts as to the wisdom of articles 29 to 32 of the draft
code. Generally speaking, it is highly desirable that an
award once given should be final, and should not be
open to revision or annulment even on the part of the
International Court of Justice. These articles would
undoubtedly offer great encouragement to the losing
party to attempt to get the case reopened in one way
or another. As regards article 29, since cases are seldom
taken to arbitration except with full knowledge of all
the facts, it is rare indeed that any material fact comes
to light subsequent to the award, but it would neverthe-
less be a comparatively simple matter to allege the dis-
covery of such a fact and to seek a revision.
As regards the grounds given for challenging the
validity of an award under article 30, these seem to be
dangerously wide. For instance, (a) "that the tribunal
has exceeded its powers" will enable any decision of
the tribunal as to its competence or jurisdiction to be
automatically reopened. Again, (c) "that there has
been a serious departure from a fundamental rule of
procedure" raises the question what is a "fundamental"
rule of procedure and what constitutes a "serious" de-
parture from it. Finally, as regards (b), "that there
was corruption on the part of a member of the tri-
bunal", the position is that members of international
tribunals are chosen with such care that it seems
scarcely necessary to provide specially for the unlikely
event of a lack of integrity on the part of one of them.
For these reasons, the United Kingdom Government
do not consider that the advantages to be gained by the
possibility of revision or annulment can outweigh those
to be gained from finality, and they consider that any
provision for revision or annulment might well lead to
an intolerable extension of arbitral proceedings which
in any event tend to take up a good deal of time.
10. UNITED STATES OF AMERICA
Comments of the Government of the United States of
America transmitted by a note verbale dated 11
March 1953 from the permanent delegation of the
United States to the United Nations
As the Commission states it the last paragraph of the
Introduction to the draft, the "basic philosophy underly-
ing the draft is that an agreement to arbitrate will be
made subject to judicial enforcement. In view of prac-
tices generally followed by States up to the present
time, the draft prepared by the Commission represents
an effort in the progressive development of international
law. In instances where frustrations of an agreement
to arbitrate have proved impossible, that result has been
due to special clauses of a compulsory nature having
been included in the original agreement. Because of
the history and practice in the field of international
t erne
only employed where no prior obligation to submit the
dispute to arbitration exists and the obligation is cre-
ated by an agreement to that effect which at the same
time defines the dispute to be submitted to arbitration.
In many cases, however, the obligation to arbitrate
arises from the fact that a treaty or convention, either
a general multilateral one or a bilateral one, on some
subject or other, contains a provision for arbitration of
any disputes that may arise concerning the interpreta-
tion or application of the treaty or convention. In such
cases, the usual, and in many ways the preferable,
method of submitting the matter to the tribunal would
be by a complaint on the part of one of the parties which
would then be answered by the other party, this being
followed by further pleadings, written and oral, as
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arbitration, there may be a wide reluctance on the part
of States at this time to enter into a convention along
the lines of the one drafted by the International Law
Commission, intended to cover all types of cases. How-
ever, in any event the work of the International Law
Commission will have positive value as a statement of
desired goals in the field of arbitration, giving added
emphasis to the settlement of disputes by arbitration
rather than by coercive means.
The draft may also have immediate value for States
not willing to accept it in toto at this time, e.g., as a
model from which certain articles could be taken for
inclusion in future arbitration agreements in which
it is felt desirable to make an agreement to arbitrate
effectively binding. In working over the draft in prepa-
ration for its presentation to the General Assembly, the
International Law Commission may wish to bear this
in mind. It might wish to modify the present draft in
certain respects. It might wish also to draft a set of
shorter and simpler articles which could serve as models
for inclusion in future arbitration agreements where
the parties desired that the agreement should be subject
to judicial enforcement.
The following comments relate to specific articles of
the draft:
Article 2, paragraph 1
If States which are not parties to the Statute of the
International Court of justice will be invited to adhere
to the final draft on arbitral procedure, provision will
have to be made to meet the requirements of paragraph
2 of article 35 of the Statute of the Court. This could
be accomplished by adding the following penultimate
sentence to paragraph 1 of article 2 of the draft : "If a
party to the dispute is not a party to the Statute of the
Court, such party shall comply with the conditions laid
down by the Security Council in pursuance of para-
graph 2 of article 35 of the Statute".
Article 3
The procedure contemplated for the selection of arbi-
trators may be unnecessarily complex. The steps con-
templated by paragraphs 2 and 3 might perhaps be
eliminated. Such a revision would also entail changing
the fourth paragraph by making the first clause read :
"If either party fails to make the necessary appoint-
ments under the preceding paragraph", and by eliminat-
ing the clause that reads : ", or if the governments of the
two States designated fail to reach an agreement within
three months".
In the Commission's draft it is not entirely clear that
each of the three-month periods are used in paragraphs
1, 3 and 4 is cumulative. Note should also be taken of
the fact that the draft does not contain provision for
the contingency wherein States are under the obligation
to pursue other procedures, or have previously invoked
other procedures.
Article 4, paragraph 1
It is provided that "The parties having recourse to
arbitration may act in whatever manner they deem most
appropriate". It is felt that this proposition either is not
descriptive of the desired result or is too broad. At best,
its language is vague. In order to link this provision
with the provision which follows, namely, "they may
refer the dispute to a tribunal consisting of a sole
arbitrator or of two or more arbitrators as they think
fit", it is suggested that a colon be substituted for the
semicolon, now separating the two provisions, or that
the first quoted provision be deleted as surplusage.
Article 4, paragraph 2
It is suggested that the word "however" is unneces-
sary and should be eliminated.
Article 5
In providing that a party may not, after the "pro-
ceedings" have begun, replace an arbitrator designated
by it, the article seems unnecessarily restrictive. For
example, the arbitrators might convene merely for the
purpose of organizing and adopting rules of procedure
and then adjourn for a considerable period to enable the
parties to prepare their pleadings and briefs in accord-
ance with the rules. No reason is perceived why an
arbitrator might not be replaced during such a period.
It would seem sufficient to provide that a replacement
may not be made after the completion of the written
pleadings and the beginning of oral arguments, if any,
except by agreement of the parties. A change of this
nature in article 5 would also necessitate a slight change
in the wording of paragraph 1 of article 7.
Article 7, paragraph 2
It is suggested that the following sentence be added
at the end of the paragraph : "Appointment of a re-
placement shall be subject to the provisions of article
Article 7, paragraph 3
It is believed that the words "over the objection of a
member of the tribunal" are implied, but should be
made explicit, after the phrase "should the withdrawal
take place".
Article 8
It is suggested that after the word "decision" in both
paragraphs 1 and 2 of article S the words "as to dis-
qualification" be added. This would avoid any ambiguity
as to whether "decision" might be construed to mean
"decision in the dispute", rather than "decision as to
disqualification".
The Commission might also wish to consider the
addition of a third paragraph to the article : "The re-
placement of disqualified arbitrators shall be subject to
the provisions of article 3".
Article 9 (h)
It may be impractical in many instances for the
parties to fix in advance a period within which awards
must be rendered. This is particularly true with respect
to the general arbitration of a large number of pecuni-
ary claims accumulated over a long period of years.
Article 16
It is felt that the jurisdiction sought to be conferred
on the arbitral tribunal under the proposed draft is too
broad. There should be some limitation to prevent the
tribunal from deciding issues that neither party may
desire to have decided, e.g., issues which have previ-
ously been determined.
The Commission might wish to consider the follow-
ing wording for article 16: "For the purpose of secur-
ing a complete settlement of a particular dispute, the
tribunal may decide on any counter-claim arising out
of the immediate subject-natter of the dispute".
Article 28, paragraph 2
It is suggested that a provision be included making
the decision of the International Court of justice bind-
ing on the parties.
Article 29, paragraph 4
The comment regarding article 28, paragraph 2, is
also applicable here.
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11. URUGUAY
Letter from the Ministry for External Relations
of Uruguay
[Original: Spanish]
[8 July 1953]
I have the honour to send you herewith, . the
comments of the Faculty of Law and Social Sciences
and of the Uruguayan Institute of International Law,
concerning the "Draft on arbitral procedure".
Although the final date fixed for receiving opinions
has expired, it was considered that the reports of those
bodies might usefully be communicated.
Report by Dr. Eduardo Jimenez de Arechaga, Profes-
sor of Public International Law, Faculty of Law and
Social Sciences
Montevideo, 23 March 1953
? On 17 March last, the Council over which you pre-
side requested me to report on the draft on arbitral
procedure prepared by the International Law Commis-
sion of the United Nations, concerning which the Min-
istry for External Affairs has asked for the official
opinion of the Faculty of Law and Social Sciences.
In my opinion, the Faculty of Law should advise
the Government of the Republic to give this draft its
strongest approval and support.
By historical vocation and constitutional precept
(article 6 of the Constitution) Uruguay is a resolute
supporter of arbitration for the settlement of inter-
national disputes.
Nevertheless, the provisions of the arbitration treaties
concluded by our country have serious technical and
legal defects. They are, in fact, true promises to con-
tract (pacts de contrahendo-), since although the par-
ties agree to submit any dispute which may arise to
arbitration, the treaties do nothing to facilitate the con-
stitution of the tribunal and the determination of the
concrete points to be decided, after the dispute has
arisen. The parties must again reach agreement in
two instances : first, on the determination of the points
in dispute which will be the subject of the award and,
secondly, on the choice and constitution of the tribunal.
The bilateral treaties which have been ratified do not
establish or prescribe any means of overcoming obsti-
nate opposition by one of the parties, either to the de-
termination of the points to be settled or to the choice
or constitution of the tribunal. It is to be feared that
after the dispute has arisen, a party desirous of pre-
venting the arbitration agreed upon will interpose every
kind of obstacle ; this assumption has been borne out
by recent experience.
In the disputes which arose concerning the violation
of human rights in Hungary, Romania and Bulgaria
(case of Cardinal Mindzenty) these States evaded the
undertaking to arbitrate included in the respective peace
treaties, by the relatively simple expedient of refusing
to appoint their representative on the tribunal. The
United States, France and the United Kingdom asked
that the tribunal should be composed of their represent-
atives, the neutral third member to be appointed by the
Secretary-General of the United Nations.
The International Court of justice gave an advisory
opinion against this claim, however, based on an ex-
cessively literal interpretation of the word "third", in
its ordinal and chronological sense ; it held that the
appointment of the two representatives of the parties
must take place before the third representative could
be appointed. This interpretation is certainly incorrect,
since the word "third" is here used in its legal, not in
its ordinal or chronological acceptation. The meaning is
that of "third party" in the law of procedure, as op-
posed to a "party": one who is disinterested or neutral
in the dispute, not one who takes third place or comes
third in order. This opinion of the Court was tanta-
mount to stating that, failing an express provision in the
text of the arbitration treaty itself, the tribunal could
not be constituted and the undertaking to arbitrate
would therefore fall to the ground if one of the parties
to the treaty merely refused to appoint its representa-
tive on the tribunal or to co-operate in constituting it.
It will be understood that this view raised most serious
problems concerning the future of the whole system of
arbitration treaties and, in general, of pacific settlement
of disputes now in force. This opinion of the Court
could lead directly to an attempt to give an optional
character (si voluero) to most of the treaties in force
on conciliation, arbitration and other means of pacific
settlement, including those of vital interest to our coun-
try.
Fortunately, the reaction against this tendency has
found expression in the magnificent draft of the Inter-
national Law Commission, the main author of which
was Mr. Scelle, the eminent French internationalist.
The provisions of this draft transform treaties into
something more than promises to contract : they pro-
vide for automatic constitution of the tribunal, the
quasi-comprornis and "unilateral citation" by applica-
tion, so that further agreement after a specific dispute
has arisen, which is always difficult, is rendered un-
necessary. Our country has, on various occasions, advo-
cated formulas of this kind, such as those included in
the Pact of Bogota, which may possibly not come into
force. In my opinion, the Government should not only
support the formula under consideration against the
attacks and objections to which it is sure to give rise,
but should also uphold the view that some of its provi-
sions are already in force as rules codifying positive
international law and are therefore applicable even
without any express stipulation to that effect in existing
treaties.
For instance, the above-mentioned case of one of the
parties failing to appoint its representative on the con-
ciliation commission or arbitral tribunal is not provided
for in most of the existing treaties on pacific settlement
of disputes, because it is a phenomenon that had not
previously appeared. This ex parte appointment is a
right or privilege and, as such, its exercise is optional
and may therefore he waived. A study of comparative
law would seem to show that the domestic legislation of
most civilized countries contains legal rules or maxims
corresponding to article 538 of our Code of Civil Pro-
cedure which lays down that when arbitration is pre-
scribed, the arbitrators shall be appointed by the judge
in the event of failure or refusal of the parties to do
so, If this is so, this rule constitutes a general prin-
ciple of law recognized by civilized nations and can be
applied in accordance with Article 38 of the Statute of
the International Court of Justice as an existing rule
to supplement or interpret a treaty.
In short, the draft under consideration should be sup-
ported, because it is based on the thesis that a State
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which has entered into an undertaking to submit dis-
putes to arbitration cannot evade that undertaking by
the simple expedient of refusing to perform the acts
stipulated which are necessary for fulfilment of the
main obligation. It is a rule of good faith between indi-
viduals as between States, that anyone who has under-
taken to follow a certain line of conduct is also bound
to carry out the subsidiary acts essential for that pur-
pose.
A report on the draft in question issued by the Uru-
guayan Institute of International Law, which was
drawn up by Dr. Juan Andres Ramirez, expresses simi-
lar views in support of the proposed rules, with which
I entirely agree, subject to two minor reservations. In
this report it is considered preferable, in the event of
withdrawal of an arbitrator after the proceedings have
begun; for the vacancy to be filled in the same way as
normal vacancies. It should be remembered, however,
that the history of arbitration shows that withdrawal
of an arbitrator is always due to the fact that the party
which appointed him has discovered that he is going
to rule against it. His replacement as for normal vacan-
cies would favour that State, by making it necessary to
start the proceedings again and delaying and obstruct-
ing the award. On this point, I prefer the formula
recommended in the draft, by which the remaining
members render the award. In any case, the consent of
the neutral member would always be required before
an award could be rendered, and this provides sufficient
safeguards.
The report of the Institute of International Law also
raises the objection that no time limit is set for chal-
lenging the validity of an award on the ground of cor-
ruption of a member of the tribunal so that the award
remains open to annulment indefinitely.
Further recent events, however, show the wisdom of
this provision, under which an award may be challenged
at any time on the basis of facts which, by their very
nature, usually come to light many years afterwards.
For instance, as recently as July 1949, it became pos-
sible to publish the revelations of the United States
lawyer Otto Schoenrich about the way in which the
award was rendered in the frontier dispute between
Venezuela and British Guiana, fifty years previously.
These revelations are based on the confidential notes
left by the lawyer Severo Mallet-Prevost, with the re-
quest that they should not be published until after his
death. He was convinced that the President of the tri-
bunal and the neutral arbitrator, the famous Russian
internationalist F. de Martens, was induced to rule in
favour of Great Britain as the result of an understand-
ing between the two European Powers.
Report by Dr. Juan Andres Ramirez, Vice-President of
the Uruguayan Institute of International Law
Montevideo, 9 March 1953
I am returning to your Ministry the draft rules on
international arbitration formulated by the International
Law Commission of the United Nations, concerning
which the opinion of our Institute has been requested.
The Institute considered this question at one of its
recent sessions and approved the following report :
"Having examined the draft on arbitral procedure
prepared by the International Law Commission of
the United Nations, I consider it worthy of approval,
subject to the proposal of a few amendments.
"There is no doubt that the determination of the
procedure to be followed by tribunals for arbitration
between nations may, and should, be regarded as an
essential condition for effective arbitration. It may
well be affirmed that in this respect the saying of
Benjamin Constant that forms are the guardian an-
gels of the law still holds good and it is clear that, if
the forms governing the operation of arbitral tri-
bunals are not clearly laid down, a party accepting
arbitration in bad faith or becoming dubious of the
result during the proceedings could make an award
impossible by repeated procedural incidents.
"Nevertheless, the draft-and in my opinion this
is one of its merits-in most cases leaves the parties
to agree on the procedure and it is only when they
fail to reach agreement on this subject that it lays
down compulsory rules.
"These rules are comprehensive, since they cover
the procedure from the time when doubt or disagree-
ment arises as to the existence of a dispute or as to
whether it is within the scope of the obligation to
have recourse to arbitration, up to application for
revision or annulment of the award and the conse-
quences of the judgment declaring it invalid (articles
29 to 32) ; and throughout this procedure, which is
laid down in considerable detail, whenever an obstacle
arises which might impede the regular course of
arbitration, the solution applied is compulsory sub-
mission of the matter to the International Court of
justice.
"The rest of the draft pays due attention to the
appointment of the arbitrator or arbitrators, giving
priority to agreement between the parties and pro-
viding additional procedure in the event of failure
to reach agreement.
"I do not agree with the provision contained in
article 3 since, in my opinion, the matters dealt with
are too important to be entrusted to a member of
the International Court of justice and not to that in-
stitution as such.
"I consider particularly wise, however, the pre-
cautions taken in the draft (articles 5 to 18) to en-
sure the immutability of the arbitral tribunal and
prevent a party to a dispute, which foresees or ex-
pects that the tribunal will rule against its claims,
from being able to change the composition of the
tribunal by exerting influence or provoking incidents
to complicate the proceedings.
"For this reason, the replacement of arbitrators is
permitted only in exceptional cases specifically men-
tioned in the text.
"The draft provides for a case in which an arbi-
trator who has been withdrawn is not replaced and
lays down (article 7, paragraph 3) that upon the
request of one of the parties, the remaining members
of the tribunal shall have power to render the award;
I consider this system unsatisfactory and prefer re-
placement in the manner prescribed for other cases
of vacancy.
"With regard to the annulment of the award (ar-
ticles 30-32), I consider it open to objection that a
time limit of sixty days is fixed for applications based
on the tribunal exceeding its powers or a serious
departure from a fundamental rule of procedure,
while no such limit is fixed for applications based on
corruption of a member of the tribunal. I think that
a longer period should be allowed than the sixty days
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on matters which must be presumed to be of capital which appointed the arbitrator should be allowed a
d f time to replace him and that the re
importance cannot be left open to annulment in
definitely.
"Such is my opinion on the draft submitted for
comment."
eat that the Institute approved this report, but it
I re
p
made one amendment. With regard to the withdrawal
of an arbitrator, it took a stand between that of the
certain perio 0
maining members of the tribunal should be empowered
to act only if the replacement is not effected within that
period.
It was also agreed that if any member of the Institute
present at the meeting subsequently had any suggestion
to make, he would forward it to the Ministry.
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ANNEX II
Comments by governments on the draft articles on the continental shelf and related subjects prepared by
the International Law Commission at its third session in 1951 20
1. BELGIUM
Comments of the Government of Belgium transmitted
by a note dated 1 March 1953 from the permanent
delegation of Belgium to the United Nations
[Original: French]
The fact that a considerable number of countries
have taken unilateral measures to regulate the explora-
tion and exploitation of the submarine platform and
of theepicontinental waters above that platform shows
the desirability of determining the law of nations
with regard to such exploitation.
The same importance attaches to the regime of
territorial waters, the consideration of which was given
priority by the International Law Commission.
The two problems have certain aspects in common.
A study of the International Law Commission's
preliminary draft on the continental shelf and related
subjects (A/1858) calls for the following comments:
The Belgian Government attaches great importance
to articles 3, 4 and 5 of part I of the draft, because
their purpose is to safeguard the freedom of the high
seas.
It admits that this freedom cannot be absolute and
that internationally accepted measures should be taken,
both with regard to the exploitation of submarine
wealth and with regard to fishing outside territorial
waters.
It considers that international bodies should be ap-
pointed to delimit both submarine continental shelves
and fishing zones in the high seas. These bodies should
be advisory only and should endeavour to promote
international agreements on the regimes to be set up.
The Belgian Government is opposed to the proposal
in part II, article 2, notes 3 and 5, of the draft. The
bodies concerned cannot exercise legislative powers
over States, which can be bound only by international
conventions accepted by them.
The following further comments may be made with
regard to the draft.
Article 1
Since the term "continental shelf" is rightly not
used in its geological sense, it would seem better not
to use it at all and to describe this zone by the term
"submarine areas".
This gives a better definition of the scope of the
article, for it does not apply to the waters which cover
these areas and over which no State can exercise an
exclusive right.
If these areas are delimited with reference to the
20 See Official Records of the General Assembly, Sixth Ses-
sion, Supplement No. 9, document A/1858.
depth at which the exploitation of the natural resources
of the sea-bed and the subsoil is possible, up to a max-
imum depth of 200 metres, the nature of the submarine
areas will be adequately defined.
Article 2
It is essential to maintain the definition of the con-
trol and jurisdiction exercised by the riparian State,
namely, that such control and jurisdiction should be
exercised exclusively with a view to the exploration
and exploitation of the submarine areas. Any idea of
sovereignty must be rejected.
Articles 3, 4 and 5
These articles, which lay down freedom of naviga-
tion, fisheries, airspace and the establishment of sub-
marine cables, must be retained, otherwise, the prin-
ciple of control and jurisdiction over submarine areas
will not be acceptable.
Article 6
The meaning of the words "must not result in sub-
stantial interference with navigation or fishing" should
be defined. Although the exploitation of the subsoil
might not interfere with fishing, or with the activities
of fishermen, it might reduce or even completely de-
stroy certain species of fish in the localities concerned.
The International Law Commission's proposal might
be taken as a basis for discussion. It seems to mean
that exploitation would be permitted only if it did
not interfere with navigation and fishing, obstruct the
traffic on maritime routes, and pollute or disturb fish-
eries.
As at present worded, article 6 may give the im-
pression that no previous notification is required from
the State which begins exploration or exploitation.
This question should be clarified and some author-
ity should be designated with power to decide whether
the conditions of article 6 have been observed and
to refuse permission if necessary.
The safety zones (article 6, paragraph 2) should be
delimited in the article itself, to avoid any infringe-
ment of freedom of navigation and fishing.
Article 7
Legal provisions should be laid down as a basis for
arbitration and for possible recourse to the Interna-
tional Court of Justice in connexion with disputes on
the delimitation of the respective submarine areas of
two neighbouring countries.
In the absence of an agreement on delimitation be-'
tween the countries concerned, the submarine areas of
two neighbouring States might be delimited by the pro-
longation of the line separating their territorial waters,
and those of two States separated by water. by the
median line between the two coasts.
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PART II
Article 1
It should be understood that no measure for regulat-
ing and controlling fishing on the high seas adopted
unilaterally by one State can be invoked against the
fishermen of another State. Any regulation contrary
to this principle, which is the corollary of that of the
freedom of the high seas, is inadmissible.
Article 2
As has been said above, it is useful to
advisory international bodies. Nevertheless,
appoint
in view
of the variety of the problems which arise in some
fishing areas, it does not seem advisable to assign these
advisory powers to a single body. It would be desirable
to consult regional bodies or councils. In the case of
Europe, such matters might be referred to the Inter-
eational Council for the Exploration of the Sea.
Article 3
?each government should adhere strictly to the prin-
ciple of the freedom of the high seas and understand
that it can only reserve fishing for its nationals in its
own territorial waters. Sedentary fisheries cannot con-
stitute an exception to this principle, except in cases
where a certain part of the high seas has in fact been
used for such fishing for a long time and such use has
not been formally and persistently opposed by other
States, which might have valid objections in view of
their geographic situation. Even so, such fishing should
be carried on in such a way as to interfere as little
as possible with the principle of the freedom of the
high seas (Gidel).
Article 4
It is essential to define in this article the base line
from which the twelve-mile limit is to be measured.
This base line should be that recognized for determin-
ing the limits of territorial waters. The question of
base lines should be dealt with in an international
agreement after the problem of territorial waters has
itself been studied.
2. BRAZIL
Letter from the permanent delegation of Brazil to the
United Nations
[5 March 1952]
The Brazilian Government, by Decree No. 28.840,
of 8 November 1950, proclaimed its control and
jurisdiction over the continental shelf, considered as
an extension of the national territory. The Decree
does not establish any specific delimitation of the con-
tinental shelf, The right of free navigation on the
superjacent waters is expressly recognized by the Act
of the Brazilian Government.
After carefully studying the work accomplished by
the International Law Commission, my Government
wishes to praise the Commission for the thoroughness
and quality of the research it undertook on such a new
and controversial matter, where customary law and
international practice are still lacking. The Brazilian
Government accepts, in principle, the conclusions
reached by the International Law Commission, em-
bodied in the draft articles, and regards them as a
very valuable contribution for the future definition of
the international regime of the continental shelf. Al-
though in general agreement with the Commission, we
beg leave to comment on two points which my Gov-
ernment considers of paramount importance.
In regard to article 1, my Government feels that
the Commission should further explore the possibility
of establishing, at least on a provisional basis, a more
precise limit for the continental shelf. As a matter of
fact, the International Law Commission itself recog-
nized in paragraph 198 of the report covering its sec-
ond session (A/1316) that "the area over which such
a right of control and jurisdiction might be exercised
should be limited".
Regarding article 2, the Brazilian Government feels
that the word "exclusive" should be inserted before the
word "purpose". This would avoid possible doubts and
would give better expression to the points of view of
the members of the Commission, as stated in para-
graph 1 of the commentaries to the same article. If the
members of the Commission felt that the "control and
jurisdiction over the continental shelf should be exer-
cised solely for the purpose stated" we can see no
objection to inserting the word "exclusive" in the
phraseology of the article.
Apart from those two points, the Brazilian Govern-
ment, as stated above, finds itself in agreement with
the draft articles prepared by the International Law
Commission, reserving the right to present any further
comments and to propose any other modifications to the
text it may deem fit when the matter will be ready for
discussion at the General Assembly.
3. CHILE
Comments of the Government of Chile, transmitted by
a letter dated 8 April 1952 from the permanent
delegation of Chile to the United Nations
[Original: Spanish]
The Government of Chile congratulates the Com-
mission on having prepared draft articles on the highly-
specialized subject of the continental shelf.
This Government, however, feels bound to object
to some of the provisions of these draft articles, par-
ticularly in regard to:
(1) The legal concept of the continental shelf ;
(2) The nature of the rights which may be exer-
cised by a State over the submarine shelf adjacent to
its territory;
(3) The legal status of the waters overlying the sea-
bed and subsoil ; and
(4) Subjects related to the continental shelf.
1. LEGAL CONCEPT OF THE CONTINENTAL SHELF
Geographically and geologically, the expression "con-
tinental shelf" is generally taken to mean the submarine
area contiguous to the national territory, lying at a
depth of not more than 100 fathoms (185 to 200
metres), and forming a single morphological and geo-
logical unit with the continent.
Is it therefore necessary to make the recognition
of a coastal State's rights depend upon the existence
of a continental shelf as understood and defined by
geology? In other words, are States with abruptly
shelving coastlines, without a gently-sloping shelf de-
scending, sometimes almost imperceptibly, to a depth
of 200 metres, to be excluded from all jurisdiction
over the sea-bed and subsoil bordering upon their deep-
sea water ?
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These doubtful points of theory have been cleared
up in the draft articles prepared by the United Nations
International Law Commission.
According to article 1 of the draft, ". . the term
`continental shelf' refers to the sea-bed and subsoil of
the submarine areas contiguous to the coast, but out-
side the area of territorial waters, where the depth
of the superjacent waters admits of the exploitation
of the natural resources of the sea-bed and subsoil".
The depth limit of 200 metres has been eliminated
from the definition and replaced by the modern legal
idea that the sea-bed and subsoil may be exploited.
As I the commentary on article 1 so properly re-
marks, technical developments in the near future might
make it possible to exploit intensively the natural
resources of the sea-bed and subsoil, whatever the
depth of the superjacent waters.
The origin of the International Law Commission's
article may be found in the Commission's 1950 report,
the relevant passage of which reads as follows :
"The Commission took the view that a littoral
State could exercise control and jurisdiction over
the sea-bed and subsoil of the submarine areas sit-
uated outside its territorial waters with a view to
exploring and exploiting the natural resources there.
The area over which such a right of control and
jurisdiction might be exercised should be limited;
but, where the depth of the waters permitted ex-
ploitation, it should not necessarily depend on the
existence of a continental shelf. The Commission
considered that it would be unjust to countries hav-
ing no continental shelf if the granting of the right
in question were made dependent on the existence of
such a shelf".
(United Nations : Report of the International Law
Commission; Official Records of the General Assembly,
Fifth Session, Supplement No. 12 (A/1316), New
York, 1950, page 22).
According to the authoritative opinion of Mr. J. P. A.
Francois, the Netherlands jurist, acceptance of the geo-
logical conception of the continental shelf would mean
inequality amongst States and unfair discrimination
against a State whose continental shelf did not go
beyond the limits of its territorial waters.
The International Law Commission's conclusions on
this point appear to the Chilean Government to be
correct and acceptable, for geology, while it may in-
fluence law to some extent, cannot impose principles
upon it
2. RIGHTS OF A STATE OVER THE ADJACENT SUBMARINE
SHELF
The International Law Commission would not grant
the coastal State full sovereignty, but only a limited
and special form of jurisdiction, over this very special
area.
Article 2 of the draft provides that "The con-
tinental shelf is subject to the exercise by the coastal
State of'. control and jurisdiction for the purpose of
exploring it and exploiting its natural resources".
Apparently the Commission refrained from using
the word "sovereignty" in order to avoid the impli-
cations of its acceptance on the status of the superja-
cent waters.
The conclusions of the International Law Commis-
sion on this point are unrealistic and are out of har-
mony with the usual international practice.
The Governments of Mexico, Argentina, Chile, Peru,
Costa Rica, Guatemala, Honduras, El Salvador, Nica-
ragua, Brazil and Ecuador have all, at different times,
made unilateral statements of their positions on this
matter, declaring categorically that their rights over
the submarine shelf contiguous to their national ter-
ritory amount to more than mere "control" or "juris-
diction", and are proper to or inherent in sovereignty
and dominion.
Thus the Chilean Official Statement of 23 June
1947 declares that "The Government of Chile con-
firms and proclaims its national sovereignty over all
the continental shelf adjacent to the continental and
island coasts of its national territory, whatever may
be their depth below the sea, and claims by conse-
quence all the natural riches which exist on the said
shelf, both in and under it, known or to be discovered".
(Memoria del Ministerio de Relaciones Exteriores,
1947, page 204.)
Similar concepts are expressed in the statements
issued by the other American Governments just men-
tioned.
There are various reasons to justify sovereignty and
dominion over the continental shelf as this is now
understood.
In the first place, this area is actually an extension
and a part of the national territory; it should there-
fore be subject to the sovereignty of the State of
whose territory it is an under-sea extension in the same
way as the rest of that territory.
As Mr. Miguel Ruelas so justly remarks, the con-
tinental shelf belongs to the coastal State, because
generally the rivers of that State have brought down
the rich deposits which cover the coastal area of the
shelf (See Miguel Ruelas, "La Cornisa Continental
Territorial". Revista de Derecho Internacional, year
IX, Vol. XVII, January-June, 1930, page 130).
In the second place, the security and the right of
self-preservation of the coastal State have some impor-
tance. These fundamental rights include the right of a
State to dispose of and use its national territory in all
possible ways.
To deny a coastal State the right of sovereignty and
jurisdiction over the continental shelf is equivalent to
denying it part of the national territory with which,
as an international entity, it came into being. In other
words, that State will be deprived of a source of
wealth which, sooner or later, given the natural rate of
growth of all communities, it will wish to use and dis-
pose of as owner.
The right of self-preservation has another aspect,
namely, the action necessary to repel aggression and to
avert imminent danger.
The claim by a nation that its continental shelf
should be subject to its exclusive sovereignty, domin-
ion and jurisdiction lessens that danger and the prob-
ability of disputes between nations.
A strong foreign nation, desiring to exploit actually
or ostensibly the resources in the waters adjacent to
the territorial waters of a State might set up installa-
tions or other appropriate equipment which would
not only decrease the natural resources in a way preju-
dicial to the coastal State, but also positively threaten
the security and territorial integrity of that coastal
State.
In the third place, fisheries are still a vital necessity
and an element of the problem, since if the deep-sea
44
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fishing grounds, which are usually over those areas, o certain a e e f of Argentina, Chile,
-
Peru Costa Rica Honduras and Nicaragua, in proc1a
i
h
es
e spec
are left at the mercy of the first comer, t
will be depleted.
Finally, Chile is so situated geographically that both
the waters and the submarine areas in question are
absolutely necessary to its survival.
Furthermore, the theory of the extension of sov-
ereignty over the continental shelf and the superja-
cent waters is confirmed by international practice.
For all these reasons the Government of Chile feels
obliged to reject article 2 of the draft and to suggest
that the principle that sovereignty, dominion and juris-
diction over the continental shelf are vested ipso jure in
the coastal State should be confirmed.
3. LEGAL STATUS OF WATERS OVERLYING THE SEA-BED
AND SUBSOIL
Under the draft prepared by the United Nations
International Law Commission the waters overlying the
continental shelf have the legal status of high seas,
with all its consequences. Surface navigation and fish-
ing rights can therefore only be restricted to the de-
gree absolutely necessary for exploring and exploiting
the resources of the sea-bed and subsoil.
With regard to installations constructed on the high
seas for the purposes already indicated, the Commis-
sion considers that safety zones may be established
round them but should not be classed as territorial
waters.
The subject is dealt with in articles 3, 4, 5 and 6
of the draft. Under these articles the rights which may
be exercised by the coastal State over the waters over-
lying the sea-bed and subsoil of the continental shelf do
not conform exactly to the concept of sovereignty. If
the theory propounded by the International Law Com-
mission is accepted, the coastal State will have only
very partial and special jurisdiction over the high seas
-i.e., it will be entitled to exercise only control and
supervision.,
The principles accepted by the International Law
Commission lead to a manifest contradiction; whereas,
as we have already suggested here, the continental
shelf should be subject to sovereignty, i.e., to the total
jurisdiction of the State whose territory extends be-
neath the sea. Thus the sea-bed and subsoil would be
subject to the dominion and sovereignty of the coastal
State, while over the superjacent waters that State
would only exercise restricted rights of an economic
and administrative nature, which might well give rise
to conflicts of jurisdiction.
These principles should therefore be brought into
line with a realistic rule or system which would safe-
guard the rights of the coastal State.
Whenever a rule is needed to settle disputes between
nations, jurisprudence produces one which, under the
test of time, is confirmed if satisfactory and amended
or superseded if not.
In this belief the Government of Chile would reject
articles 3, 4, 5 and 6 and propose their replacement by
a new provision proclaiming that the sovereignty of a
coastal State extends to its continental shelf and to the
superjacent high seas, subject to the limitations im-
posed by international law to ensure the innocent and
peaceful passage of the ships of all nations and the
establishment and maintenance of submarine cables.
This theory of sovereignty, adopted by the Govern-
ment of Chile, appears to be borne out by the practice
, ,
mations dated respectively 11 October 1946, 23 June
1947, 1 August 1947, 27 July 1948, 28 January 1950
and 1 November 1950, have categorically claimed the
sovereignty of their States over the continental shelf
adjacent to their coasts and over the superjacent waters
to the extent required to guarantee' to those States own-
ership of the resources therein contained.
4. SUBJECTS RELATED TO THE CONTINENTAL SHELF
A. Resources of the sea and sedentary fisheries
The problem of the continental shelf is closely linked
with that of the conservation of resources of the sea.
The International Law Commission has accordingly pre-
pared three articles based on the former practice of
international law by which, as a corollary to the free-
dom of the seas, no State could reserve to itself abso-
lutely and as against all other nations a monopoly of
hunting and fishing in any part of the "free" or "high"
seas.
That used to be the international law or rule, but
the principle of the freedom of-the seas must be re-
examined in the light of the present facts.
The seas are in reality dominated, used, and-it may
almost be said-possessed by States maintaining pow-
erful navies, fishing and merchant fleets, bases, supply
ports, docks and shipyards. The nationals of those
States are the only persons who fully enjoy all the
privileges of the "freedom of the seas".
Such a state of affairs has a direct bearing on the
area of the territorial sea, as it would not suit the
major sea Powers to have the territorial waters, where
international custom has recognized the exclusive right
of the coastal State to fish and hunt, increased in
area.
It is a well-known fact that fishing fleets under the
direct control of the great sea Powers engage in activ-
ities prejudicial to the States bordering upon the
Pacific coast.
The American community could not remain indiffer-
ent to such acts, and since 1945 there has grown up
the practice of protecting, conserving, regulating and
supervising the operation of fishing and hunting, in
order to prevent the diminution or exhaustion, by il-
licit activities such as those mentioned, of the consid-
erable resources of the seas of those areas, which are
indispensable to the well-being and progress of the
American peoples.
On 28 September 1945, the President of the United
States of America formulated a new doctrine when he
issued a proclamation accompanied by an executive
order, declaring the right of his country to establish
fisheries conservation zones in the high seas areas con-
tiguous to the coasts of the "United States, either ex-
clusively or in agreement with' other States concerned.
In an Official Declaration dated 23 June 1947, the
President of Chile, on the basis of existing doctrine
and of similar measures taken by Mexico and Ar-
gentina, laid down the following:
"2. The Government of 'Chile confirms and pro-
claims. its national sovereignty over the seas adja-
cent to its coasts whatevei may be their depths,
and within the limits necessary to reserve, protect,
conserve and exploit the natural resources of what-
ever nature found on, withiri and below the said seas,
placing within the control` of the Government es-
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n mg ac tvities with the
in the past and
res
t b
object of preventing the exploitation of natural riches
of this kind to the detriment of the inhabitants of
Chile and to prevent the spoiling or destruction of
those riches to the detriment of the country and the
American continent.
"3. The demarcation of the protection zones for
hunting and deep sea fishing in the continental and
island seas under-the control of the Government of
Chile will be made in virtue of this declaration of
sovereignty at any moment which the Government
may consider convenient, such demarcation to be
ratified, amplified or modified in any way to conform
with the knowledge, discoveries, studies and interests
of Chile as required in the future. Protection and
control are hereby declared immediately over all
the seas contained within the perimeter formed by
the coast and the mathematical parallel projected
into the sea at a distance of 200 sea miles from
the coasts of Chilean territory. This demarcation
will be calculated to include the Chilean islands,
indicating a maritime zone contiguous to the coasts
of those islands, projected parallel to those islands
at a distance of 200 sea miles around their coasts.
"4. The present declaration of sovereignty does
not disregard the similar legitimate rights of other
States on a basis of reciprocity, nor does it affect
the: rights of free navigation on the high seas".
(Mentoria del Ministerio de Relaciones Exteriores,
1947, page 203.)
Other countries followed our example-Peru in
1947, Costa Rica in 1948, and El Salvador and Hon-
duras in 1950-using in their declarations on the sub-
ject terms very similar in form and content to those
in the Chilean proclamation. All this is ground enough
for saying that the doctrine that the State may estab-
lish exclusive zones of control and protection of mari-
time fishing and hunting in areas of the high seas
contiguous to its territory known as "continental seas
or waters" has become part of the American interna-
tional system.
The: Government of Ecuador promulgated on 22
February 1951 a Maritime Fishing and Hunting Act,
article! 2 of which extends the territorial seas to a dis-
tance of twelve sea miles outward, subject to any
future: definition of the term jurisdictional waters of
the Republic of Ecuador (see Registro Official, year
III, No. 747, page 6149).
If we turn from the practice of States to recently-
concluded multilateral treaties, we find the same ten-
dency to limit hunting and fishing on the high seas.
Article 9 of the Treaty of Peace with Japan obliges
that country to conclude agreements regulating and
limiti
g fi
hi
n
s
ng on the high seas.
For these reasons the Government of Chile is obliged
to scrutinize articles 1, 2 and 3 of part II of the draft
prepared by the United Nations International Law
Commission, and believes that there should be a re-
affirmation of the right to establish an exclusive hunt-
ing and; fishing zone 200 sea miles wide.
This measure, which the Chilean Government sup-
ports, is based on the following reasons : (1) the spe-
cial configuration of the submarine shelf along the
coasts of Chile; (2) the exploitation of the fisheries,
which are of vital concern to Chile; (3) the inade-
quacy of three miles of territorial sea for protecting
the fishing industry and preventing destruction of ma-
rine life; and (4) the improper jurisdiction exercised
p
en
y certain forei
n vessel
g
s over
Chilean fishermen, whose living comes mainly from the
sea.
B. Contiguous zones
By the term "adjacent zone" or "contiguous zone",
international law recognizes the existence of a maritime
belt or area between the high seas and the territorial
waters over which a coastal State may exercise certain
limited rights of a generally administrative nature re-
lating to sanitary and customs control, safety of navi-
gation and the protection of fishing.
Its legal nature should not be confused with that
of the territorial sea, which is a part of the territory
of the coastal State and therefore subject to its sov-
ereignty. The total jurisdiction of the coastal State
is exercised over the territorial sea, but it has only
partial and special powers over the contiguous zone.
In the draft prepared by the United Nations In-
ternational Law Commission the contiguous zone ap-
pears as a belt of the high seas, contiguous to the ter-
ritorial sea, over which the coastal State may exercise
the control necessary to prevent infringement within
its territory or territorial waters of its customs or sani-
tary regulations and any attack on its security by
foreign vessels. According to article 4 of the draft, the
breadth of the zone may not exceed twelve nautical
miles measured from the coast, a much less favourable
provision than that of the draft prepared in 1929 at
Harvard University, in which the contiguous zone may
be of any width. (Draft of Convention on Territorial
Waters, article 20; the text appears in Supplement to
the American Journal of International Law, volume 23,
April 1929, page 245.)
Moreover, how can these twelve miles be recon-
ciled with the vast extent of ocean prescribed in ar-
ticle 4 of the Inter-American Treaty of Reciprocal
Assistance, an area of sea classified by doctrine as a
contiguous zone?
The limit adopted by the International Law Commis-
sion seems contrary to the new tendency in interna-
tional law not to give the zone an exact or well-defined
limit but rather to consider the jurisdiction which the
coastal State must exercise on the high seas.
The Government of Chile considers that the limit
prescribed in article 4 of the International Law Com-
mission's draft should not be established, but that the
contiguous zone should be extended and broadened
so that the coastal State may take the steps necessary
to prevent, within its territory or territorial waters,
infringement of its customs, fishing or sanitary regu-
lations and attacks on its political or economic security
by foreign vessels.
The Government of Chile believes that this zone
should be at least 100 nautical miles measured from
the coast.
4. DENMARK
Communication from the permanent delegation of
Denmark to the United Nations
NOTE: By a note verbale to the Secretariat, dated 13 May
1952, the Permanent Delegation of Denmark to the United Na-
tions transmitted the following "comments and viewpoints of
Danish experts". The note verbale stated that "the Danish
Government wishes to reserve its final position, until it has been
given the opportunity to review the points of view of other
countries as well as the formulation of the final result of the
existing international co-operation in this matter".
The draft is considered a proper basis for negotia-
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tions on this subject. It is considered particularly valu-
able that it has succeeded in obviating the difficulties
involved by the controversial question of the extent of
territorial waters. By refraining from fixing any defi-
nite geographical limit to the extent of the shelf into
the sea, differences of opinion have been precluded
on that point. The avoidance of any reference to sov-
ereignty in the established sense of the word is another
useful aspect of the draft which refers only to an
exclusive right to exploration and exploitation without
involving, for instance, the question of the status of
such areas during conditions of war and neutrality.
The Danish authorities would find it appropriate that
the right of the coastal State as set out in part I,
article 2, be expressly characterized as an exclusive
right since that would preclude any idea of expansion
of the territory of the State concerned.
The media through which the draft thus reaches a
practicable arrangement cannot, however, be consid-
ered a final solution to the problems as far as Den-
mark is concerned. In the Baltic, where there is no
deep sea, the system outlined in the draft will neces-
sitate agreements with the other Baltic Powers, and
such agreements are likely to encounter difficulties
and may perhaps prove impracticable. On the west
coast of Denmark, the application of the principle of
control and jurisdiction as far as possibilities of ex-
ploitation exist might also lead to conflicts of interest
with other countries.
The draft, therefore, gives occasion for certain com-
ments involving questions of principle as well as vari-
ous individual aspects :
For the special conditions existing off the Danish
coasts, part I, article 7, prescribes that two or more
States to whose territories the same continental shelf
is contiguous shall establish boundaries by agreement;
failing agreement, the parties are under obligation to
have boundaries fixed by arbitration, involving-ac-
cording to the commentaries-a possible recourse to
the International Court of Justice.
This alternative, however, is not practicable in all
cases. In the first place, not all States would be willing
to abide by a solution of that nature; more particu-
larly, some of the countries which would be involved
by the areas in question are known to be opposed
thereto as a matter of principle. But even when the
question is to be referred to arbitration or to a court,
a solution would seem unlikely, unless the treaty itself
already contained certain directives or guiding prin-
ciples, since these problems involve entirely new as-
pects which can hardly be decided according to ex-
isting legal or political principles. In this connexion,
the commentaries admittedly refer to a decision ex
aequo et bono by which the court may, to some ex-
tent, disregard existing law or the fact that the exist-
ing law contains no definite rules or guiding principles.
Nevertheless, this expression has certain bearings upon
a legal or a general moral evaluation, but provides no
guidance for decision of entirely new technical prob-
lems or political pretentions.
Hence, the Danish authorities would find it desirable
that the treaty itself should provide for a body com-
posed of experts which could submit proposals for
such delimitations, possibly with some form of appeal
or recourse to arbitration or to a court. This body
might consist of, for instance, three non-partisan expert
members, one appointed by the Security Council of the
United Nations, one by the General Assembly, and one
The decisions of this body should be reached on the
bases of directives laid down in the treaty. Should a
State interested in the decision find that such directives
had not been complied with, or That the decision was
otherwise unreasonable, it should be entitled to refer
that question to a court of arbitration established by
the parties or, failing this, to the International Court
of justice which should have authority to decide the
aspects specifically mentioned in the treaty, and possibly
to refer the matter back to the expert body for recon-
sideration if the circumstances were found to warrant
such action.
In regard to the directives mentioned above, the
commentaries already refer to the median line, and
where this line is applicable, such reference is fully
approved by Denmark. Cases may occur, however,
where a median line is not directly applicable, for
instance, because the interests `in the exploitation of
the shelf are more or less at right angles to each other;
in such cases reference could be made to a solution
according to the bisector.
Furthermore, it is felt desirable that the points of
view referred to on page 71 of the rapporteur's second
report were expressly incorporated into the treaty,
namely, the reference to a line perpendicular to the
coast drawn from the point at which the frontier
between the territorial waters of the two countries
reaches the high seas. If such a boundary between the
two territorial waters of two countries has previously
been fixed according to a line of demarcation which
can be prolonged towards the high seas, such prolonga-
tion should be indicated as the starting point for the
line of demarcation also on the continental shelf.
However, in some cases an area may have to be
divided between three or more countries. In such cases
reference may be made to planes forming the locus
of the points which are closer to one of the countries
than to any of the others.
Such directives or guiding principles would estab-
lish a basis for a solution in cases where agreement
among the interested countries could not be reached,
while the absence of such principles may entail differ-
ences of opinion and disputes which the draft intends
to obviate.
Having regard to the basic principles of the draft
in connexion with the above comments, the Danish
authorities have prepared the enclosed sketch 21 of a
division of the shelf contiguous to the Danish coasts
facing the North Sea and the Baltic and the waters
between them. This sketch is primarily based on the
boundaries fixed on 3 September 1921 between Dan-
ish and German territorial `waters east and west of
Jutland, and the boundary fixed by agreement of 30
January 1932 between Danish and Swedish waters in
the Sound and the prolongation of these lines combined
with the median line, where the latter is applicable,
and otherwise based on planes forming the locus of
points closer to Denmark than to any other country
involved. The sketch might serve as an illustration
of a division under concrete conditions calling for
special solution; the principles outlined may also be
applicable to analogous cases in other geographical
areas.
Concerning the actual exploitation of the sea-bed
and the subsoil, part I, article 5, expressly states that
the new arrangement shall not prevent the laying and
maintenance of submarine cables by other States. It
by the President of the International Court of justice. 21 Not reproduced.
47
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is assumed that this provision refers to cables not only
for telecommunication but also for transmission of
power and the like. The Danish authorities are in full
agreement with this provision. With the present formu-
lation it may be doubtful, however, which of the two
interests shall be overriding or, in other words, whether
a State may be required to move the cable or, vice
versa, whether a cable can be laid even where this
is at variance with an exploitation intended by the
coastal State. It would seem natural here to distinguish
between cables already existing, in which case a re-
moval, if any, should probably entail a compensa-
tion for the expenses incidental to such removal, and
to the laying of new cables which should be effected
in such a way as not to interfere with steps for ex-
ploitation of the sea-bed already taken by the coastal
State. Also where other installations are involved which
have already been placed by other States, for instance,
the mooring of lightships and the like, some regard
should be had to arrangements existing already.
On the other hand, the commentaries indicate that
this provision shall not be extended to pipelines, which
is probably intended to mean the laying of new pipe-
lines. However, other types of installations may be
placed on the sea-bed and, in the view of the Danish
authorities, it would therefore be desirable to have it
expressly established that the exclusive right recog-
nized for the coastal State (see the remarks to part
I, article 2 above) shall cover any other exploitation
of the sea-bed and the subsoil, with submarine cables
as the only exception, for instance the right to culti-
vation (algae and other marine plants), establishment
and maintenance of permanent installations for ex-
ploitation of the sea-bed, including the fixing of
permanent stakes and other fishing devices, stone-
gathering and pearl-fishing on the sea-bed, etc., so
that other States could not in any case, apart from
submarine cables, use the sea-bed or the subsoil with-
out the consent of the coastal State, with the explicit
recognition that the exclusive right comprises all such
forms of exploitation.
With respect to part II, articles 1 and 2, the following
comments may be made :
The Danish authorities take a favourable view of
the efforts expressed in these articles to provide pos-
sibilities for the conservation and control of fishing on
the high seas in such geographical areas where ade-
quate preservation and control have not been established
already. Moreover, it is acknowledged that, in areas
where only few countries take part in fishing, such
countries have a primary interest in the enforcement
of provisions of this nature. It is felt, however, that
such States should not be in a position where they
could use the initiative that would have to be left to
them for these purposes to establish priority for their
own fishermen to the exclusion of fishermen from other
countries who might later wish to take part in such
fishing activities. Such priority would, in fact, be
feasible even if the arrangement formally placed all
countries taking part in such fishing on an equal foot-
ing, if for instance the permissible fishing methods
did not have the same value to fishermen of other
countries-or could not be used at all. (In this con-
nexion, reference is made to the procedures which
in some cases have rendered illusory the application
of the most-favoured-nation clause). Hence, it would
be essential to clarify the issue as to when and under
what conditions any countries arriving later should be
entitled to participation in the establishment of new
regulations in order that, if agreement cannot be
reached, such countries should not have to be gov-
erned by previously adopted provisions for an indefinite
period. It is therefore suggested that procedures should
be established for application if provisions for preser-
vation and control have already been adopted by a cer-
tain number of countries for a geographical area in
which other countries later wish to take part in the
fishing activities and consider the provisions already
established to be at variance with their interests, or
consider the control applied to be inadequate.
In regard to the international body referred to in
article 2, the Danish authorities wish to point out that
it has been charged with two different tasks, viz., to
make regulations where interested States are unable
to agree among themselves, and to conduct continuous
investigations of the world's fisheries and the methods
employed in exploiting them.
In the former respect it is pointed out that Denmark
is in agreement with the principle of an international
regulation of fisheries in cases of disagreement among
the interested parties, but a final attitude to the draft
proposal cannot be decided upon until the composi-
tion and organization of the proposed body is known
in greater detail. It should be noted, however, that
such regulation could, to a large extent, probably be
undertaken by existing international agencies such as
the International Council for the Exploration of the
Sea.
In regard to the function of the body referred to
in article 2, in respect of investigations, it should also
be noted that in the opinion of the Danish authorities
the existing international bodies, such as the Interna-
tional Council for the Exploration of the Sea, have
functioned satisfactorily and that their activities have
provided valuable experience and practical working
methods; hence, it would not be desirable at the present
time to replace the existing bodies by one single inter-
national body. The Danish authorities therefore pro-
pose that the body referred to in article 2 should con-
duct its investigations in consultation with the existing
international bodies and in geographical areas where
such investigations are not already being carried out
by existing international bodies.
In regard to part II, article 3, the Danish authorities
refer to their comments on part II, article 1, and
point out that it would be natural for coastal States to
have an exclusive right to place permanent installa-
tions for sedentary fisheries on that part of the high
seas that is contiguous to the territorial waters of
such State, analogous to the exclusive right of coastal
States to place installations for exploitation of the
coastal State's part of the continental shelf as stated
above. It would also be desirable to ensure free navi-
gation by adding a provision to the effect that sedentary
fisheries must not result in substantial interference with
navigation, cfr. a similar provision in part I, article
6, concerning the exploration and exploitation of the
continental shelf.
The commentaries of the International Law Com-
mission define sedentary fisheries as fishing activities
carried out by means of stakes embedded in the sea-
floor. Such stakes, it is presumed, are placed during
the fishing season and then removed, whereas the
establishment of permanent installations, as already
mentioned, should be reserved for the coastal State.
Sedentary fisheries, it is noted, can be undertaken also
by devices other than stakes, e.g., buoys and anchors.
48
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 The folio win g ved FntsRe feasee 2p000i08/a2tcl CIA-RDPS?iPtyo ?PqQ0MPiaQAglai;d exploitation of the
of the draft proposal : shelf's natural resources.
The Danish authorities appreciate the potential need Article 3: The Commission regards the waters
for establishment of contiguous zones adjacent to ter- covering the continental shelf as high seas. It is bound
for by its definition- the continental shelf
ritorial waters where a coastal State may exercise to do so,
the control necessary to prevent the infringement, is outside the area of territorial waters. However,
within its territory, of customs, fiscal or sanitary regula- under our law the superjacent waters may be high seas
tions. The limit of twelve miles from the coast fixed in some cases and territorial waters in others.
for such zones is also acceptable to the Danish au- Article 4 deals with the legal status of the airspace
thorities. above the superjacent waters of the continental shelf.
It has been noted with satisfaction that no extension As a logical consequence of the preceding article, the
of territorial waters is involved. Commission regards that airspace as free. However,
Some concern is felt, however, about the absence from article 2 of the Legislative Decree of 6 November
of a specific definition of the nature of the control in 1950 and from our Constitution it follows that the air-
question, since this may lead to abuse by the institu- space over the superjacent waters of the continental
tion of meticulous control measures on navigation and shelf may be free in some cases and territorial in
.
main-
fisheries where such control is not required to prevent others Article 5 entitles the coastal State to lay and main-regula- tions. Abuses of ch, fiscal and sanitary tain submarine cables on the continental shelf in virtue
tions. of this styp type might, in point of fact, , b be e of its jurisdiction over the shelf. We have no com-
tantamount to an expansion of territorial waters. g on the subject, but
The Danish authorities feel, therefore, that conti u- parable }:proviovision imayn do our any law act and take any meast
ous zones should not be established unilaterally by a tires whatsoever within the confines of its own ter-
e State but only by treaties between the inter- ritory, which includes the continental shelf where the
ested ted States. . superjacent water is not more than 200 metres deep.
5. ECUADOR
Comments of the Government of Ecuador transmitted
by a note verbale dated 30 January 1952 from the
permanent delegation of Ecuador to the United
Nations
[Original: Spanish]
The Government of Ecuador has the honour to ex-
press the following views :
Article 1: The concept of the continental shelf or
continental platform, as contained in this article, is
qualified by two conditions : that the shelf be outside
the area of territorial waters, and that it admit of the
exploitation of the sea-bed and subsoil.
This concept is not entirely in accord with articles
1 and 2 of the Legislative Decree of 6 November 1950
approved by the National Congress of Ecuador, which
does not subject the continental shelf to these two
conditions. Our continental shelf, which is limited to
submerged land contiguous to continental territory
where the depth of the superjacent waters does not
exceed 200 metres, lies partly within and partly be-
yond the area of territorial waters. Nor does its exist-
ence depend simply upon whether the depth of the
superjacent waters admits exploitation of the natural
resources of the sea-bed and subsoil, as stipulated in
the International Law Commission's formula. The Act
says simply that the continental shelf or platform
contiguous to Ecuadorean coasts, "and all or any part
of the wealth it contains, belong to the State . ". The
Commission will only recognize the continental shelf
if its natural resources can be exploited; in Ecuadorean
law the right of exploitation is inherent in the recog-
nition of the State's jurisdiction over the shelf.
Article 2 limits the coastal State's jurisidiction over
the continental shelf to the sole purpose of exploiting
its natural resources. Although our law begins by
laying down that the Ecuadorean State "shall exercise
the right of use (aprovechamiento) and control to the
extent necessary to ensure the conservation of the said
property and the control and protection of the fisheries
appertaining thereto", it does not limit the State's
Article 6 indicates that freedom of navigation and
fishing must not be hampered by exploration of the
continental shelf and exploitation of its natural re-
sources. There is no comparable provision in our law,
but it is easily gathered that where the Ecuadorean
continental shelf extends beyond territorial waters, the
principle in the Civil Code that fishing in the sea is
free prevails. Where the Ecuadorean shelf ends within
the area of territorial waters, the matter is governed
by the principle in the Civil Code that only Ecuadoreans
and aliens domiciled in Ecuador may fish in territorial
waters, and by the provisions of the Sea Fishing and
Hunting Act relating to foreign vessels.
The relevant provisions of that Act are as
FISHING BY FOREIGN VESSELS
Article 20. No foreign fishing vessel may enter
Ecuadorean territorial waters unless carrying a certifi-
cate, a fishing permit and the other necessary docu-
ments.
Article 21. Certificates and fishing permits shall
be obtainable only from the regular (de carrera)
consulate of Ecuador having jurisdiction over the
applicant vessel's port of departure, or, where no
regular consulate has jurisdiction over the port of
departure, from the regular consulate nearest to the
vessel's course.
Fishing documents shall be issued after payment of
the duties and fees prescribed in the relevant Acts and
regulations and subject to a full and unconditional
written undertaking by the applicant to abide by the
provisions of those Acts and regulations.
Article 22. Any foreign vessel wishing to engage
in commercial fishing in territorial waters or to pur-
chase fish must register beforehand at the Ecuadorean
consulate prescribed in the preceding article.
Fishing certificates shall be valid from the date of
issue until 31 December the same year.
Article 23. A vessel in Ecuadorean waters wishing
to continue to fish after the expiry of its fishing permit
may obtain a permit by wireless. Application may be
made only to the Ecuadorean consulate that issued
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ing the permit shall import all the wording of a written fe sgbut mustoa e ly tostheplus the ucons l for a a permit. PP y proper consul for a
A fishing vessel on the high seas wishing to fish in
Ecuadorean waters may apply for a fishing permit by
wireless
id
d
, prov
e
that it has already secured a cer-
tificate from the proper consulate and obtains the
fishing permit before entering Ecuadorean waters.
Otherwise it shall be deemed to be trespassing.
Article 24. A fishing permit shall be valid for a
single voyage, that is to say from the moment of
issue until the vessel enters port to dispose of its catch
or trans-ships the catch to another vessel.
Article 25. A fishing permit shall be valid for
an One hundred
from a)
Ecuadorean days,
consulate the California obtained
Gulf of Mexico;
(b) Eighty days, if the vessel obtained it from
an Ecuadorean consulate in Central or South Amer-
ica;
(c) Eighty-five days, if issued by wireless from
an Ecuadorean consulate in California or the Gulf
of Mexico; and
(d) Seventy-five days, if issued by wireless from
an Ecuadorean consulate in Central or South Amer-
ica.
A vessel prevented from fishing by force majeure
or fortuitous circumstances duly substantiated may,
if no fish are aboard, obtain without paying a fur-
ther fee an extension of its fishing permit for a period
equal to the one expired.
Article 26. A catch may be trans-shipped only
in the cases specified in the regulations made under
this Act.
Article 27. An Ecuadorean consulate issuing fish-
ing documents in accordance with the provisions
of this Act shall forward to the Ministries of
National Economy, National Defence, and Foreign
Affairs, the Treasury and the Comptroller-Gen-
eral's Department a monthly return of fishing de-
velopments together with the statistical information
required by the regulations made under this Act,
and shall retain a copy thereof on file.
Article 28. Any foreign fishing vessel engaged in
commercial fishing or coming to purchase fish from
Ecuadorean fishermen shall pay in United States
dollars the following fishing duties and fees :
(a) For the certificate :
Swordfish
Tunny ............................200
Shark ............................200
Cod ..............................100
(b) For the permit, per net registered ton:
Swordfish
Tunny ............................ 20
Shark .... ................ 12
Cod ........................ 12
Cod fillets ......................... 24
Commercial freighters calling at Ecuadorean ports
shall pay only the ordinary export duties on fish
taken aboard for their own account or that of
another.
Article 29. Vessels coming to fish for sport
shall pay the sum of one United States dollar (gold)
Approved
special permit.
Fishing permits for scientific purposes shall be
issued free of charge upon application to the Di-
rector of the Department of Fishing and Hunting.
Article 7 prescribes how two States having terri-
tories to which the same continental shelf is contigu-
ous shall establish boundaries. As there is no express
provision in our law governing this situation, we should
be entitled to establish such boundaries by bilateral
treaty.
Related subjects. Resources of the sea. Articles 1
and 2. These articles refer to the competence of
States whose nationals are engaged in fishing in any
area of the high seas to regulate and control fishing
activities in such an area; and to the competence of a
permanent international body to conduct investigations
of the world's fishing areas and the methods employed
in exploiting them.
Because our Civil Code recognizes the principle that
fishing in the sea is free, there are no provisions com-
parable to the Commission's draft articles 1 and 2
in either the Legislative Decree of 6 November 1950
or the Sea Fishing and Hunting Act and Regula-
tions. The same comment may be made on article
3, which authorizes States to regulate the establish-
ment of fishing communities in areas of the high seas
contiguous to territorial waters.
Article 4. This article authorizes a coastal State
to exercise the control necessary to prevent the in-
fringement, within its territory or territorial waters, of
its customs or fiscal regulations.
The right to police for national security and fiscal
purposes was established by our Civil Code and Mari-
time Police Code for a distance of four marine leagues,
but the Legislative Decree of 6 November 1950 set
the area of maritime control and policing at twelve
nautical miles, i.e., the minimum for territorial waters,
The area of maritime control and policing may be
extended by virtue of such international treaties as the
Treaty of Mutual Assistance.
6. EGYPT
Comments of the Government of Egypt transmitted by
a note verbale of 5 March 1953 from the permanent
delegation of Egypt to the United Nations
[Original: French]
[February 1953]
The Egyptian Government has examined with great
interest the draft articles on the continental shelf and
related subjects prepared by the International Law
Commission at its third session in 1951. While, in view
of the importance and complexity of the problems in-
volved, it wishes to reserve its final position, it feels
able to make the following comments at this juncture:
(1) In the first place, the Egyptian Government
wishes to commend the International Law Commission
for its report on the question, which constitutes a val-
uable contribution to the codification of maritime law.
(2) As regards part I-Continental Shelf: the
Egyptian Government considers that the definition of
the continental shelf given in article 1 is clearly inade-
quate. Although the difficulties referred to by the Com-
mission in this connexion are real, it should be possible
and would be desirable to hav a more concret
d
fi
i
e
e
-
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tion of the continental shelf. The proposal for the use which is no as
of a specific depth-to be determined in the light of the feels that the draft articles constitute a really useful
circumstances-might serve as a basis, subject to any working paper and a notable step towards the recon-
subsequent technical developments which might make ciliation of the divergent views which still prevail in
it possible to exploit the resources of the sea-bed at a this area of international maritime law. To their credit,
greater depth and which might therefore necessitate a fthe reedomt of tthes eas,hwhichlle g t t retinue nciple be the
revision of the definition.
(3) The Egyptian Government further considers basic rule, nor do they question the regime of terri-
that the concept of "control and jurisdiction for the torial waters.
nd ex-
lf
h
) a
e
purpose of exploring (the continental s
ploiting its natural resources" contained in article 2
might be replaced by the well-known concept of "sov-
ereignty" which there is no good reason for rejecting,
and which presents definite advantages from the point
of view of practical interpretation. The continental shelf
would simply be subject to the sovereignty of the
coastal State. There is no reason to fear that the concept
of sovereignty would be criticized on the grounds that
it might give rise to an extension of the power and con-
trol of the coastal State, since articles 3, 4 and 5,
which the Egyptian Government supports in principle,
seem to offer assurances which could logically be ac-
cepted.
(4) Article 6, which is in the nature of a regulation,
is acceptable. It should, however, be pointed out that
the "reasonable distances" referred to in paragraph 2
should be left to be determined by each government.
(5) As regards article 7, the Egyptian Government
considers it reasonable and eminently desirable that
two or more States to whose territories the same con-
tinental shelf is contiguous should establish boundaries
in the area of the continental shelf by agreement. With
reference to comment No. 1 on the article, in which the
word arbitration is used in the widest sense, including
even arbitration ex aequo et Bono, we would draw atten-
tion to the advantage of working out a set of rules to
be applied in delimiting the zones of each State on
the continental shelf in areas where this is necessary
owing to the failure of the parties to reach an agree-
ment. These rules might serve as an objective basis for
any agreements which might be concluded between
States.
(6) As regards part II-Related subjects: the
Egyptian Government is unable at present to express
an opinion on the question of the resources of the sea
and sedentary fisheries dealt with in the first three
articles of that part, the articles being at present under
consideration by the competent authorities. As regards
article 4, however, which, relates to contiguous zones,
the Egyptian Government wishes to make the most
express reservations concerning the limitation of con-
trol on the adjacent high seas both as regards the pur-
pose of such control and the provision that it should
not be exercised more than twelve miles from the coast.
Needless to say, the curent trend is to extend the limits
of territorial waters. If article 4 were adopted in its
present form it would simply mean the abolition of
contiguous zones.
7. FRANCE
Comments of the Government of France transmitted
by a letter dated 3 October 1952 from the Ministry
for Foreign Affairs of France
[Original: French]
The French Government would like first of all to
pay a tribute to the International Law Commission for
its efforts in studying a new and controversial topic
PART I. CONTINENTAL SHELF
1. Definition. The Commission defines the conti-
nental shelf as the area "outside the area of territorial
waters, where the depth of the superjacent waters ad-
mits of the exploitation of the natural resources of the
sea-bed and subsoil" (article 1). The Commission in-
tentionally refrains from adopting a fixed limit in terms
of the depth of the superjacent waters.
Although the definition admittedly avoids the draw-
back of instability, it appears to suffer from the defect
of vagueness. It is arguable that it might be better to
contemplate a specified depth-limit of, say, 300 metres,
to avoid having to change it too soon. A fixed limit
would have the further advantage of ruling out any
dispute concerning such vague 'concepts as the ability
of the coastal State to exploit the natural resources or
the period within which it should be in a position to
do so.
2. Legal status. The provisions of draft article 2
give the coastal State "control" and "jurisdiction" over
the martime area defined as the continental shelf. One
may wonder whether the distinction drawn by the Com-
mission between the notion of "c"ontrol and jurisdiction"
and that of sovereignty is a real one. The legal con-
sequence of the monopoly of exploitation vested in the
coastal State will be the exercise of effective, though
limited, sovereignty over the continental shelf and this
sovereignty will be a fact even though the actual term
is not employed.
Article 6 stipulates that "the exploration of the con-
tinental shelf and the exploitation of its natural re-
sources must not result in substantial interference with
navigation or fishing".
This wording calls for a number of comments :
(a) It would seem useful to make it clear also that
the exploitation of the continental shelf should not
have the effect of reducing fish Production, for example,
by causing the local disappearance or the general de-
pletion of certain species.
(b) The question necessarily arises who will have
the power-and when-to judge whether the action
taken by the coastal State is, in effect, likely or not
likely to interfere with navigation or fishing. The draft
article in no way specifies what authority would be com-
petent to refuse permission or to declare an action pro-
hibited, or how serious the interference must be before
such a decision becomes a necessity.
(c) Finally, the ability to exploit under article 6
ipso facto seems to imply the ability to instal pipelines.
Perhaps it would be better to say so in so many words.
Note 4 to article 6, paragraph 2, refers to the pos-
sibility of establishing "narrow safety zones" extending
for perhaps five hundred metres around the installa-
tions. If and when discussions are held concerning the
determination of the width of such zones, care should
be taken to avoid any infringement of the freedom
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of navigation and fishing through the establishment of
such contiguous zones.
PART II. RELATED SUBJECTS
The main preoccupation of the draft articles in this
part is to ensure better protection for the natural re-
sources of the sea. These articles are divided into three
groups: resources of the sea, sedentary fisheries and
contiguous zones.
The proposals concerning the related subjects ad-
mittedly contain clearer provisions than those concern-
ing the exploitation of the natural resources of the
sea-bed and subsoil. No doubt this is accounted for by
the fact that the question is not a new one and that it
was possible to rely on the various studies which had
preceded the preparation of the international conven-
tions concluded in the past for regulating fishing on the
high seas. Nevertheless, some of the proposed pro-
visions are still not beyond criticism.
1. Resources of the sea
Article 1 gives each State the right to regulate fish-
ing in any area if its nationals are engaged in fishing
in that area, subject to the proviso that the measures
to be taken shall be taken "in concert" if several States
are involved. This is a proposition which is based on
general and internationally accepted principles and
which has been acted upon on previous occasions. It
follows that no unilateral measure by one of the States
concerned may be pleaded against the nationals of an-
other State. The same observation applies to the situ-
ation, also covered by article 1, where the area in
question is within one hundred miles of the territorial
waters of a coastal State.
Article 2 provides for the possibility of establishing
a permanent international body with competence not
only to conduct investigations of fisheries but also to
make regulations for conservatory measures to be ap-
plied by the States whose nationals are engaged in fish-
ing in any particular area where the States concerned
are unable to agree among themselves. In the French
Government's view it would be desirable to establish
such a: body, with powers to take regulatory, technical
and economic decisions. However, there are two obser-
vations to be made in this connexion.
(1) . Obviously, if practicable general regulations are
to be worked out, one must envisage the contingency
that one of the States might find itself in disagreement
with the others. It may be recalled that when the Inter-
national Convention for the Northwest Atlantic Fish-
eries of 3 February 1949 was being drafted, some
thought was given already then to the establishment
of a body of this kind to deal with all questions relating
to the maintenance of the level of the stocks of fish
covered by the Convention. However, as there was some
opposition on this point, the Convention merely pro-
vided for the establishment of a qualified body to sub-
mit proposals for the approval of the various govern-
ments concerned. That is a first step which should
perhaps be judged in the light of the experience gained
before it is planned to establish an international body
with powers of decision, such as that described in the
draft article.
(2) It should also be pointed out that the sys-
tem recommended can be useful only in so far as it
includes all the interested States, for the non-participa-
tion of any one of them can prevent the proposed meas-
ures from materializing.
2. Sedentary fisheries
(1) Attention should be drawn to the vagueness of
article 3, so far as the definition of the term "sedentary
fisheries" is concerned. The note to this article merely
states that the term means fisheries which should be
regarded as sedentary because of the species caught or
the equipment used. It would be absolutely necessary
to delimit the scope of this definition more particularly.
(2) It should be noted that while a non-coastal State
may maintain and exploit the fisheries in question on
an equal footing with a coastal State, it has to be "per-
mitted" to do so. This stipulation obviously places it in
an inferior position with respect to the coastal State and
deprives it of the freedom of action it enjoyed previ-
ously over a part of the high seas.
3. Contiguous zones
Article 4 has the merit of establishing a uniform limit
for the zone within which a coastal State may exercise
control and might therefore be useful in putting an
end to many uncertainties. The French Government
would therefore be prepared to give it consideration,
subject to the proviso that the grant of the right of
control to a coastal State can on no account be held to
constitute an extension of that State's sovereignty be-
yond its territorial waters.
This proviso leads to another as a necessary corollary :
the proposed article will only be acceptable if it is
supplemented by fixing the limits of territorial waters
in such a way that the power to fix them is not left to
the discretion of the States concerned. The French Gov-
ernment feels therefore that, with respect to this funda-
mental point, the work of the Commission must be com-
pleted and that any attempt to make regulations govern-
ing the so-called contiguous zones presupposes that the
limits of territorial waters have been fixed.
The French Government wishes to offer one final
comment which relates both to the provisions dealing
with the continental shelf and to those concerning the
related subjects. It is to be noted that while provision
is made for a system of general regulatory and policing
measures, no mention is made of the conditions which
are to govern the supervision of these measures. Yet the
question of supervision raises a good many difficulties
of a national and international character (practical
methods for exercising it, financial costs, apportionment
of financial responsibility, etc.) and it is difficult to
take a position on any of the articles in question until
some further particulars, with explanations, concerning
this general problem are obtained.
8. ICELAND
Communication from the Ministry for Foreign Affairs
of Iceland
[5 May 1952]
The Ministry of Foreign Affairs of Iceland presents
its compliments to His Excellency, the Secretary-Gen-
eral of the United Nations and has the honour to refer
to the Legal Department's note of 28 November 1951
(LEG 292/1/07) inviting the comments of the Gov-
ernment of Iceland upon document A/CN.4/49, con-
taining the International Law Commission's draft arti-
cles on the continental shelf and related subjects.
The Government of Iceland has studied the draft
articles referred to and has the honour to submit the
following comments dealing mainly with jurisdiction
over fisheries :
52
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l. The Commission defines the term "continents in t ie s om destroying other
shelf" as referring to the sea-bed and subsoil of the resources which are based on the same sea-bed.
submarine areas contiguous to the coast but outside 3. The Government of Iceland does not maintain
the area of territorial waters, etc. (part I, article 1). that the same rule should necessarily apply in all coun-
It then says that the continental shelf is subject to the tries. It feels rather that each case should be studied
exercise by the coastal State of control and jurisdiction separately and that the coastal State could, within a
for the purpose of exploring it and exploiting its nat- reasonable distance from its coasts, determine the neces-
ural resources (part I, article 2) and that the exercise sary measures for the protection of its coastal fisheries
by a coastal State of control and jurisdiction over the in view of economic, geographic, biological and other
t_ _ leg_1 ..
t
f the __t..._
t
iderationC
t
us o
a
cons
superjacent waters as high seas (part 1, article 3).
The Commission also says that on the high seas ad-
jacent to its territorial waters, a coastal State may exer-
cise the control necessary to prevent the infringement,
within its territory or territorial waters of its customs,
fiscal or sanitary regulations (part II, article 4). On
the other hand, fishing activities on the high seas (i.e.,
outside territorial waters) are to be regulated through
agreements among the States concerned. Also, an inter-
national body should be set up and be empowered to
make regulations for conservatory measures to be ap-
plied by the States whose nationals are engaged in fish-
ing in any particular area where the States concerned
are unable to agree among themselves (part II, articles
1-2). It is specifically stated that in no circumstances
may an area be closed to nationals of other States
wishing to engage in fishing activities (part II, article
1).
The Icelandic Government is unable to agree with
these views. At the General Assembly of the United
Nations, in 1949, the Icelandic delegation pointed out
that it would not be sufficient for the Commission to
study the regime of the high seas as proposed by the
Commission itself and that it would be necessary for it
to study also the other side of the problem, i.e., the
question where the high seas started, or, in other words,
the regime of territorial waters. In that way the entire
problem, including the problem of contiguous zones
would be covered. The Commission has not yet cir-
ort on the question of territorial waters.
d its re
l
t
p
a
e
cu
Nevertheless, in its report on the regime of the high
seas it seems to have prejudged the issue. For in. part
h C fission seems to have
mm
f
ANNEX I TO COMMENTS BY THE GOVERNMENT
OF ICELAND
LAW CONCERNING THE SCIENTIFIC CONSERVATION OF THE
CONTINENTAL SHELF FISHERIES, DATED 5 APRIL 1948
(Translation)
The President of Iceland proclaims : The Althing has passed
the present law which is hereby approved and confirmed :
Article 1
The Ministry of Fisheries shall issue regulations establish-
ing explicitly bounded conservation zones within the limits of
the continental shelf of Iceland; wherein all fisheries shall be
subject to Icelandic rules and control; Provided that the con-
servation measures now in effect shall in no way be reduced.
The Ministry shall further issue the necessary regulations for
the protection of the fishing grounds within the said and the Ames.
The Fiskifelag Islands (Fisheries Society) an
nudeild Haskela Islands (University of Iceland Industrial Re-
search Laboratories) shall be consulted prior to the promul-
gation of the said regulations.
The regulations shall be revised
search.
in the light of scientific re-
Article 2
The regulations promulgated under article 1 of the present
law shall be enforced only to the extent compatible with agree-
ments with other countries to which Iceland is or may become
a party.
Article 3
Violations of the regulations issued under article 1 shall be
punishable by fines from kr. 1,000 to kr. 100,000 as specified in
the regulations.
t, t e o
I, article 1, of its dra
taken for granted that the "continental shelf", as de- The Ministry of Fisheries shall, to the extent practicable,
fined by it, is situated outside territorial waters. And participate in international scientific research in the interest of
i ?
h_ _ conservation.
T
does not say.
2. The views of the Icelandic Government with
regard to fisheries jurisdiction can be described on the
basis of its own experience, as follows:
Investigations in Iceland have quite clearly shown
that the country rests on a platform or continental shelf
whose outlines follow those of the coast itself (see pro-
visional map, p. 54) whereupon the depths of the real
high seas follow. On this platform invaluable fishing
banks and spawning grounds are found upon whose pres-
ervation the survival of the Icelandic people depends.
The country itself is barren and almost all necessities
have to be imported and financed through the export of
fisheries products. It can truly be said that the coastal
fishing grounds are the conditio sine qua non of the
Icelandic people for they make the country habitable.
The Icelandic Government considers itself entitled and
indeed bound to take all necessary steps on a unilateral
basis to preserve these resources and is doing so as
shown by the attached documents. It considers that it is
unrealistic that foreigners can be prevented from pump-
ing oil from the continental shelf but that they cannot
Article 5
This law shall take effect immediately.
Done in Reykjavik, 5 April 1948.
(Signed) Sveinn BJoRNSSON
President of Iceland
Johann P. Josefsson
Reasons for the law of 5 April 1948 (submitted to the Icelandic
Parliament)
It is well known that the economy of Iceland depends almost
entirely on fishing in the vicinity of its coasts. For this reason,
the population of Iceland has followed the progressive im-
poverishment of fishing grounds with anxiety. Formerly, when
fishing equipment was far less efficient than it is today, the
question appeared in a different light, and the right of pro-
viding for exclusive rights of fishing by Iceland itself in the
vicinity of her coasts extended much further than is admitted
by the practice generally adopted since 1900. It seems obvious,
however, that measures to protect fisheries ought to be ex-
tended in proportion to the growing efficiency of fishing equip-
ment.
Most coastal States which engage in fishing have long recog-
nized the need to take positive steps to prevent over-exploit-,t-
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 tion resulting in a coo WRQV&laWP@le @n2q dW25 t~ i I~ ip~t irk 4a ~I~I 0t~ey~ would not, of
Nevertheless, there is no agreement on the manner in which
such steps should be taken. The States concerned may be divided
into two categories. On the one hand, there are the countries
whose interest in fishing in the vicinity of foreign coasts is
greater than their interest in fishing in the vicinity of their own
coasts. While recognizing that it is impossible not to take
steps to mitigate the total exhaustion of fishing grounds, these
States are nevertheless generally of opinion that unilateral
regulations by littoral States must be limited as far as possible.
They have also insisted vigorously that such measures can only
be taken by virtue of international agreements.
On the other hand, there are the countries which engage in
fishing mainly in the vicinity of their own coasts. The latter
have recognized to a growing extent that the responsibility
of ensuring the protection of fishing grounds in accordance
with the findings of scientific research is, above all, that of the
littoral State. For this reason, several countries belonging to
the latter category have, each for its own purposes, made legis-
lative provision to this end the more so as international nego-
tiations undertaken with a view to settling these matters have
not been crowned with success, except in the rather rare cases
where neighbouring nations were concerned with the defence
of common interests. There is no doubt that measures of pro-
tection and prohibition can be taken better and more naturally
by means of international agreements in relation to the open
sea, i.e., in relation to the great oceans. But different considera-
tions apply to waters in the vicinity of coasts.
In so far as the sovereignty of States over fishing grounds
is concerned, two methods have been adopted. Certain States
have proceeded to a determination of their territorial frontiers,
especially for fishing purposes. Others, on the other hand, have
left the question of the territorial frontier in abeyance and have
contended themselves with asserting their exclusive right over
fisheries, independently of such a frontier. Of these two
methods, the second seems to be the more natural, having re-
gard to the fact that certain considerations arising from the
idea of the "territorial frontier" have no bearing upon the
question of an exclusive right to fishing, and that there are
therefore serious drawbacks in considering the two questions
together.
When States established their sovereignty over fishing zones
in the vicinity of their coasts they adopted greatly varying
limits; in the majority of cases, they adopted a specified num-
ber of nautical miles : three miles, four miles, six miles or
twelve kilometres, etc. It would appear, however, to be more
natural to follow the example of those States which have de-
termined the limit of their fisheries in accordance with the
contour of the continental shelf along their coasts. The con-
tinental shelf of Iceland is very clearly marked, and it is there-
fore natural to take it as a basis. This is the reason why this
solution has been adopted in the present draft law.
Commentary on article 1. Two kinds of provisions are con-
cerned : on the one hand, the delimitation of the waters within
which the measures of protection and prohibition of fishing
should be applied, i.e., the waters which are deemed not to
extend beyond the continental shelf; and, on the other hand,
the measures of protection and prohibition of fishing which
should be applied within these waters. In so far as the enact-
ment of measures to assure the protection of stocks of fish is
concerned, the views of marine biologists will have to be taken
into consideration, not only as regards fishing grounds and
methods of fishing, but also as regards the reasons during
which fishing shall be open, and the quantities of fish which
may be caught.
At present, the limit of the continental shelf may be con-
sidered as being established precisely at a depth of 100 fathoms.
It will, however, be necessary to carry out the most careful
investigations in order to establish whether this limit should
be determined at a different depth.
Commentary on article 2. The provisions of this article have
a bearing upon the following agreements: the Agreement be-
tween Denmark and the United Kingdom, of 24 June 1901, and
the International Convention for the Regulation of the Meshes
of Fishing Nets and the Size Limits of Fish, of 23 March
1937. Should the provisions contained in this draft law appear
agreements, as long as these agreements remain in force.
Commentary on article 3. The amount of the fines will be
assessed with due regard to the relative importance of the
measures of prohibition which may have been infringed.
Commentary on article 4. On 17 August 1946, the Interna-
tional Council for the Exploration of the Sea recommended
that measures be taken to prohibit fishing in the Faxafloi. It
goes without saying that Iceland will take. part, to the fullest
possible extent, in any initiative of this kind in relation to her
own coasts as well as others. She has already given proof of her
interest in these problems, in particular by taking part in inter-
national oceanographic research.
Article 5. This article does not call for comment.
ANNEX II TO COMMENTS BY THE GOVERNMENT
OF ICELAND
REGULATIONS CONCERNING THE CONSERVATION OF FISHING
BANKS OFF THE NORTH COAST OF ICELAND
Section 1
All trawling and Danish seine-netting is prohibited in the
area from Horn to Langanes inside four nautical miles from a
basic line drawn between the outermost points of the coast,
islands and rocks ; in bays, the basic line is drawn across the
opening of the bay.
The basic line shall be drawn directly through the following
points, the conservation line being a parallel line four nautical
miles seawards :
1.
Horn ......................
66?
27'4 N., 22?
24'5 W.
2.
Irabodi ....................
66?
19'8 N., 22?
06'5 W.
3.
Drangasker ...............
66?
14'3N., 21?
48'6 W.
4.
Selsker ...................
66?
07'3 N., 21-
31'2 W.
5.
Asbuoarif .................
66?
08'1N., 20?
11'2 W.
6.
Siglunes ..................
66?
11'9-N., 18?
50'1 W.
7.
Flatey ....................
66?
10'3 N., 17?
50'5 W.
8.
Lagey .....................
66?
17'8.N.,17?
07'0 W.
9.
Raudinupur ...............
66?
30'7 N., 16?
32'5 W.
10.
Rifstangi ..................
66?
32'3 N., 16?
11'9 W.
11.
Hraunhafnartangi .........
66?
32'3 N., 14?
01'6 W.
12.
Langanes ..................
66?
22'6 N., 14?
32'0 W.
The western part of the conservation area is bounded by a
line drawn due north-east from Rani in Hornbjarg and the
eastern part by a line drawn due east from Langanesta.
Also, a four-mile zone shall be drawn from the outermost
points and rocks of the island of Grimsey (Cf, map, p. 56).
Section 2
In the area defined in section 1 only Icelandic citizens may
fish for herring and for such fisheries Icelandic vessels shall
be used, cf. Act No. 33 of 19 June 1922 concerning fishing in
territorial waters.
Section 3
Fishing operators, cf. section 2, who intend to engage in
summer herring fisheries off the north coast during the period
from 1 June to 1 October shall apply for permission to the
Ministry of Fisheries before I June 1950, and before 15 May
each succeeding year and specify in their applications the ves-
sels and the type of fishing gear to be used.
If the Ministry of Fisheries envisages the possibility of over-
fishing, the Ministry at the beginning of the herring season or
later may limit the number of fishing vessels and the maximum
catch of each individual vessel.
Fisheries statistics shall be forwarded to the Fisldfilag
Islands (Fisheries Society of Iceland) in the manner prescribed
in Act No. 55 of 27 June 1941, concerning catch and fisheries
reports.
Approved For Release 2000/08/25: CIA-RDP58-00453R000100010001-3
 Approved For Release 2000/08/25 : CIA-RDP58-00453R000100010001-3
Approved For Release 2000/08/25 : CIA-RDP50453R000100010001-3
 Approved For Release 2000/08/25 : CIA-RDP58-00453R000100010001-3
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